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    United States v. Rabieh, 10th Cir. (2010)

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    Michael Rabieh appealed the denial of his motion to modify his sentence based on amendments to the sentencing guidelines. The district court denied the motion, finding that the amendments Rabieh cited did not lower his sentencing range and one amendment was not retroactive. The appeals court affirmed, agreeing the amendments did not provide a basis for reducing Rabieh's sentence under the statute.

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    United States v. Rabieh, 10th Cir. (2010)

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    Michael Rabieh appealed the denial of his motion to modify his sentence based on amendments to the sentencing guidelines. The district court denied the motion, finding that the amendments Rabieh cited did not lower his sentencing range and one amendment was not retroactive. The appeals court affirmed, agreeing the amendments did not provide a basis for reducing Rabieh's sentence under the statute.

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    Filed: 2010-06-29 Precedential Status: Non-Precedential Docket: 09-6294

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    Michael Rabieh appealed the denial of his motion to modify his sentence based on amendments to the sentencing guidelines. The district court denied the motion, finding that the amendments Rabieh cited did not lower his sentencing range and one amendment was not retroactive. The appeals court affirmed, agreeing the amendments did not provide a basis for reducing Rabieh's sentence under the statute.

    Copyright:

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    15 views4 pages

    United States v. Rabieh, 10th Cir. (2010)

    Uploaded by

    Scribd Government Docs
    Michael Rabieh appealed the denial of his motion to modify his sentence based on amendments to the sentencing guidelines. The district court denied the motion, finding that the amendments Rabieh cited did not lower his sentencing range and one amendment was not retroactive. The appeals court affirmed, agreeing the amendments did not provide a basis for reducing Rabieh's sentence under the statute.

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    of 4

    FILED

    United States Court of Appeals


    Tenth Circuit

    June 29, 2010


    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
    Clerk of Court

    TENTH CIRCUIT

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.

    No. 09-6294
    (W.D. Oklahoma)

    MICHAEL DUANE RABIEH,

    (D.C. No. 5:07-CR-00058-C-2)

    Defendant - Appellant.

    ORDER AND JUDGMENT *

    Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.

    After examining the briefs and the appellate record, this court has
    determined unanimously that oral argument would not materially assist the
    determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
    Accordingly, the case is ordered submitted without oral argument.
    Proceeding pro se, Michael Duane Rabieh appeals the district courts denial
    of the Motion for Modification of Sentence he brought pursuant to 18 U.S.C.
    3582(c)(2). In 2007, Rabieh pleaded guilty to distributing methamphetamine, in

    This order and judgment is not binding precedent except under the
    doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
    however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
    Cir. R. 32.1.

    violation of 21 U.S.C. 841(b)(1)(C). United States v. Rabieh, 259 F. Appx


    143, 143 (10th Cir. 2007). Despite a provision in the plea agreement waiving the
    right to appeal or collaterally attack his conviction and sentence, Rabieh filed a
    direct appeal. Id. This court granted the Governments motion to dismiss the
    appeal, concluding Rabieh knowingly and voluntarily entered into the plea
    agreement. Id. at 145. When the district court thereafter enforced the waiver and
    denied Rabiehs 28 U.S.C. 2255 motion, this court denied his request for a
    certificate of appealability. United States v. Rabieh, 327 F. Appx 71, 74 (10th
    Cir. 2009).
    Rabieh then filed the 3582(c)(2) motion that is the subject of this appeal.
    In his motion, Rabieh argued his sentence should be modified based on changes
    made to the United States Sentencing Guidelines by Amendments 493, 506, and
    709. See United States v. Torres-Aquino, 334 F.3d 939, 940 (10th Cir. 2003)
    (Under 18 U.S.C. 3582(c)(2), a court may reduce a previously imposed
    sentence if the Sentencing Commission has lowered the applicable sentencing
    range and such a reduction is consistent with applicable policy statements issued
    by the Sentencing Commission.). The district court concluded it did not have
    authority under 3582(c)(2) to grant Rabieh the relief he sought. The court
    reasoned that Amendments 493 and 506 became effective before Rabieh was
    sentenced, thus neither subsequently lower his sentencing range. Further,
    Amendment 709 could not be considered as a basis for a sentence reduction
    -2-

    because it is not retroactive. Accordingly, the district court concluded it had no


    power under 3582(c)(2) to modify Rabiehs sentence. The district court also
    rejected Rabiehs Booker claims, noting he was sentenced after Booker was
    decided and further concluding the claims raised are not cognizable in a
    3582(c)(2) motion. See Dillon v. United States, No. 09-6338, 2010 WL
    2400109, at *8-*9 (U.S. June 17, 2010); United States v. Sharkey, 543 F.3d 1236,
    1239 (10th Cir. 2008) (Booker does not provide a basis for a sentence reduction
    under 3582(c)(2). (quotation and alteration omitted)). In the alternative, the
    court concluded the claims Rabieh sought to raise in the 3582(c)(2) motion fell
    within the scope of the waiver in his plea agreement which he entered into
    knowingly and voluntarily. See United States v. Hahn, 359 F.3d 1315, 1327 (10th
    Cir. 2004) (en banc).
    Rabieh filed the instant appeal, challenging the district courts denial of his
    3582(c)(2) motion. Having reviewed the record, the appellate briefs, and the
    applicable law, we conclude the denial of Rabiehs 3582(c)(2) motion was
    clearly correct. Accordingly, the district courts order denying Rabieh motion is
    affirmed for substantially the reasons stated in the district courts order dated
    December 11, 2009.

    -3-

    Rabiehs motion to proceed in forma pauperis on appeal is granted.


    ENTERED FOR THE COURT

    Michael R. Murphy
    Circuit Judge

    -4-

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