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    United States v. Dickey, 10th Cir. (2009)

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's denial of Nathan Dickey's request for a sentencing variance in his 18 U.S.C. § 3582(c)(2) motion. The district court had reduced Dickey's sentence based on Amendment 706 to the sentencing guidelines, but denied his request for a further reduction based on the 18 U.S.C. § 3553(a) sentencing factors. The appellate court held that while Booker made the guidelines advisory for original sentencings, § 3582(c)(2) does not allow resentencings based on § 3553 factors and is limited to reductions consistent with Sentencing Commission policy statements.

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    United States v. Dickey, 10th Cir. (2009)

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's denial of Nathan Dickey's request for a sentencing variance in his 18 U.S.C. § 3582(c)(2) motion. The district court had reduced Dickey's sentence based on Amendment 706 to the sentencing guidelines, but denied his request for a further reduction based on the 18 U.S.C. § 3553(a) sentencing factors. The appellate court held that while Booker made the guidelines advisory for original sentencings, § 3582(c)(2) does not allow resentencings based on § 3553 factors and is limited to reductions consistent with Sentencing Commission policy statements.

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    Filed: 2009-03-31 Precedential Status: Non-Precedential Docket: 08-2239

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's denial of Nathan Dickey's request for a sentencing variance in his 18 U.S.C. § 3582(c)(2) motion. The district court had reduced Dickey's sentence based on Amendment 706 to the sentencing guidelines, but denied his request for a further reduction based on the 18 U.S.C. § 3553(a) sentencing factors. The appellate court held that while Booker made the guidelines advisory for original sentencings, § 3582(c)(2) does not allow resentencings based on § 3553 factors and is limited to reductions consistent with Sentencing Commission policy statements.

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    United States v. Dickey, 10th Cir. (2009)

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's denial of Nathan Dickey's request for a sentencing variance in his 18 U.S.C. § 3582(c)(2) motion. The district court had reduced Dickey's sentence based on Amendment 706 to the sentencing guidelines, but denied his request for a further reduction based on the 18 U.S.C. § 3553(a) sentencing factors. The appellate court held that while Booker made the guidelines advisory for original sentencings, § 3582(c)(2) does not allow resentencings based on § 3553 factors and is limited to reductions consistent with Sentencing Commission policy statements.

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    of 7

    FILED

    United States Court of Appeals


    Tenth Circuit

    March 31, 2009


    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    TENTH CIRCUIT
    __________________________

    Clerk of Court

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    No. 08-2239
    (D.Ct. No. 2:02-CR-02076-LH-1)
    (D. N.M.)

    v.
    NATHAN DICKEY,

    Defendant-Appellant.
    ____________________________
    ORDER AND JUDGMENT *

    Before BARRETT, ANDERSON, and BRORBY, Circuit Judges.

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in the determination
    of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.

    Appellant Nathan Dickey, a federal inmate, appeals the district courts


    denial of his request for a variance sought in conjunction with his motion under
    *

    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.

    18 U.S.C. 3582(c)(2) to modify his sentence based on the sentencing factors in


    18 U.S.C. 3553(a). We exercise jurisdiction under 28 U.S.C. 1291 and affirm.

    I. Procedural Background
    In 2003, Mr. Dickey pled guilty to various offenses, including three counts
    of possession with intent to distribute cocaine base (crack), in violation of 21
    U.S.C. 841(a)(1), (b)(1)(B), and (b)(1)(C). In preparing the presentence report,
    the probation officer applied the 2002 United States Sentencing Guidelines
    (Guidelines or U.S.S.G.) and determined Mr. Dickeys possession with intent
    to distribute 49.7 grams of crack cocaine warranted a base offense level of 30.
    The probation officer then enhanced his base offense level two levels for his
    managerial and leadership roles in those offenses and also reduced his base
    offense level three levels for acceptance of responsibility, for a total offense level
    of 29. Mr. Dickeys total offense level of 29, combined with his criminal history
    category of IV, resulted in a Guidelines range of 121 to 151 months
    imprisonment. The district court sentenced Mr. Dickey at the low end of the
    Guidelines range to 121 months on all counts, to run concurrently, which he did
    not appeal.

    On February 25, 2008, Mr. Dickey filed the instant motion to modify his
    sentence under 18 U.S.C. 3582(c)(2), based on Amendment 706 to U.S.S.G.
    -2-

    2D1.1(c) which modified the Drug Quantity Table downward two levels for
    crack cocaine and became effective November 1, 2007, and retroactive as of
    March 3, 2008. 1 In his motion, Mr. Dickey also argued for a downward variance
    based on the sentencing factors in 18 U.S.C. 3553(a), asking for a reduced
    sentence of sixty months imprisonment and asserting the Supreme Courts
    decisions in Kimbrough v. United States, ___ U.S. ___, 128 S. Ct. 558 (2007),
    and United States v. Booker, 543 U.S. 220 (2005), supported such a reduction.

    On September 23, 2008, after appointing counsel to represent Mr. Dickey


    and receiving responsive briefing from the government, the district court issued
    an order determining Mr. Dickeys total offense level should be retroactively
    reduced from 29 to 27, pursuant to 18 U.S.C. 3582(c)(2) and Amendment 706,
    which, together with his criminal history category of IV, resulted in an amended
    Guidelines range of 100 to 125 months imprisonment. See U.S.S.G.
    2D1.1(c)(6) (Drug Quantity Tbl. for 49.7 grams) (2007); U.S.S.G. Pt. 5 (Sentg
    Tbl.) (2007). It then imposed a sentence at the low end of the amended
    Guidelines range of 100 months imprisonment. In imposing the amended
    sentence, the district court stated it had reviewed the record in the matter, the
    governments response to the motion, and the applicable law and found a sentence

    See U.S.S.G. Supp. to Appx C, Amend. 706 (Reason for Amend.);


    U.S.S.G. 1B1.10(a) and (c); Amends. 712 and 713 (Mar. 3, 2008 Supp.).
    -3-

    of 100 months was appropriate. It did not otherwise address that portion of Mr.
    Dickeys 3582 motion requesting a downward variance based on the 3553(a)
    sentencing factors, which we construe as a denial of his request for such a
    variance.

    II. Discussion
    Mr. Dickey now appeals the district courts failure to grant that portion of
    his 3582 motion requesting a downward variance under 18 U.S.C. 3553(a). In
    so doing, he claims the district court erred in reducing Mr. Dickeys sentence
    pursuant to 18 U.S.C. 3582(c)(2), by treating the amended guidelines sentencing
    range as mandatory, contrary to United States v. Booker, without taking into
    consideration the sentencing factors in 3553(a). In support, he asserts that when
    the district court granted his 3582(a) motion he was placed in the same position
    as if his sentence had been vacated following an appeal or the district court had
    granted a 2255 motion, so that his original sentence was vacated and a new one
    should have been imposed applying the 3553(a) factors. While Mr. Dickey
    acknowledges we rejected the same argument in United States v. Rhodes, 549
    F.3d 833 (10th Cir. 2008), petition for cert. filed (Jan. 21, 2009) (No. 08-8318),
    he advises he brings this appeal in order to preserve his right to contest any
    adverse holding on the argument presented. He also argues that the United States
    Sentencing Commissions recent 2008 revision to U.S.S.G. 1B1.10(b) violates
    -4-

    Booker by effectively rendering the crack guidelines mandatory.

    As Mr. Dickey acknowledges, his appeal must fail pursuant to our prior
    precedent. In Rhodes, we explained Booker made the Guidelines advisory so
    district courts, when conducting original sentencing proceedings, are no longer
    bound by the sentencing ranges prescribed in the Guidelines. 549 F.3d at 839.
    However, in considering whether the holding in Booker applied to a resentencing,
    like here, we held 3582(c)(2) does not permit resentencing based on 18 U.S.C.
    3553 factors and objectives, but is much more limited, authorizing a district
    court to reduce the term of imprisonment only if such a reduction is consistent
    with applicable policy statements issued by the Sentencing Commission. Id. at
    840 (quoting 18 U.S.C. 3582(c)(2)). Similarly, in United States v. Sharkey, this
    court rejected the same argument Mr. Dickey presented to the district court that
    3582(c)(2) authorizes a sentence reduction based on the 18 U.S.C. 3553(a)
    factors and the Supreme Courts decision in Kimbrough. See 543 F.3d 1236, 1239
    (10th Cir. 2008). Even before Rhodes and Sharkey, this court held 3582(c)(2)
    motions may not be employed to present Booker-type claims, as 3582(c)(2)
    only expressly allows a reduction where the Sentencing Commission, not the
    Supreme Court, has lowered the [sentencing] range. United States v. Price, 438
    F.3d 1005, 1007 & n.2 (10th Cir. 2006).

    -5-

    Not only does Booker not authorize a variance during a 3582(c)(2)


    resentencing, but the United States Sentencing Commission has revised U.S.S.G.
    1B1.10 so it expressly denies a district courts authority to grant a downward
    variance, stating the court shall not reduce the defendants term of
    imprisonment under 18 U.S.C. 3582(c)(2) ... to a term that is less than the
    minimum of the amended guideline range determined under subdivision (1) of this
    subsection. United States v. Pedraza, 550 F.3d 1218, 1220-22 (10th Cir. 2008)
    (quoting U.S.S.G. 1B1.10(b)(2)(A) (2008), effective March 3, 2008). Arguably,
    because Mr. Dickey was resentenced in September 2008, the revised guideline,
    effective March 3, 2008, applies to him. However, even if it does not, we have
    held that the prior version of 1B1.10 also restricted a resentencing judges
    authority to grant variances under 3582(c). Id. at 1221-22 (relying on U.S.S.G.
    1B1.10(b) & cmt. nn.2 & 3 (2006)). Thus, under either version of that
    guideline, it is clear the district court could consider only whether Mr. Dickey
    was entitled to a two-level offense reduction under Amendment 706 and not the
    merits of whether any other reduction of his sentence was warranted under the
    3553(a) sentencing factors.

    -6-

    III. Conclusion
    For these reasons, we AFFIRM the district courts order denying that
    portion of Mr. Dickeys motion filed pursuant to 18 U.S.C. 3582(c)(2) for a
    downward variance under 18 U.S.C. 3553(a).

    Entered by the Court:


    WADE BRORBY
    United States Circuit Judge

    -7-

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