*

After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance 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.

FILED

United States Court of Appeals

Tenth Circuit

October 13, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

RONALD FONTENOT,

Defendant - Appellee.

No. 08-1363

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D. Ct. No. 1:93-CR-00007-MSK-1)

Submitted on the briefs:*

Marc Milavitz, Boulder, Colorado, for Appellant.

David M. Gaouette, Acting United States Attorney, and Michael C. Johnson,

Assistant United States Attorney, Office of the United States Attorney for the

District of Colorado, Denver, Colorado, for Appellee.

Before TACHA, BALDOCK, and LUCERO, Circuit Judges.
-2-

TACHA, Circuit Judge.

Defendant-appellant Ronald Fontenot appeals the district court’s denial of

his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). We have

jurisdiction under 28 U.S.C. § 1291, hold that Amendment 706 to the United

States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) does not apply to a

term of imprisonment imposed upon revocation of supervised release, and

therefore AFFIRM.

I. BACKGROUND

In 1994, Mr. Fontenot was convicted of one count of distributing cocaine

and one count of distributing cocaine base. His sentencing offense level was

calculated under U.S.S.G. § 2D1.1(c) and, in conjunction with a criminal history

category of VI, produced a Guidelines range of 120–137 months’ imprisonment. 

The district court sentenced him to 130 months followed by eight years of

supervised release. 

After Mr. Fontenot had completed his term of imprisonment and was

serving his term of supervised release, he was charged with and convicted of wire

fraud and money laundering. He also was found to have violated the terms of his

supervised release. In September 2007, the district court sentenced him to 72

months on the fraud and money laundering convictions and to a six month

consecutive sentence on the revocation of his supervised release. 
-3-

On November 1, 2007, the United States Sentencing Commission

promulgated Amendment 706, which provides for a two-level reduction in the

base offense level under U.S.S.G. § 2D1.1(c) for offenses involving cocaine base. 

United States v. Rhodes, 549 F.3d 833, 835 (10th Cir. 2008). Amendment 706

was made retroactive on March 3, 2008. See id. Mr. Fontenot subsequently filed

his § 3582(c)(2) motion for sentence reduction, which the district court denied. 

II. DISCUSSION

Section 3582(c)(2) provides: 

In the case of a defendant who has been sentenced to a term of

imprisonment based on a sentencing range that has subsequently been

lowered by the Sentencing Commission . . . the court may reduce the

term of imprisonment . . . if such a reduction is consistent with

applicable policy statements issued by the Sentencing Commission.

Mr. Fontenot argues that when he was sentenced to six months

imprisonment on his supervised release violation, he was “sentenced to a term of

imprisonment based on a sentencing range that has subsequently been lowered

by” Amendment 706. We disagree. Amendment 706 has no bearing on his

current term of incarceration; that sentence is based on Mr. Fontenot’s

noncompliance with the terms of his supervised release, not on the drug quantity

table set forth at U.S.S.G. § 2D1.1(c). Moreover, a sentence reduction in this

case is not consistent with the relevant policy statement issued by the Sentencing

Commission, which clarifies that § 3582(c)(2) “does not authorize a reduction in

the term of imprisonment imposed upon revocation of supervised release.” 
1

“[C]ommentary issued by the Sentencing Commission to interpret or

explain a guideline is binding and ‘authoritative unless it violates the Constitution

or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that

guideline.’” United States v. Morris, 562 F.3d 1131, 1135 (10th Cir. 2009)

(quoting Stinson v. United States, 508 U.S. 36 (1993)). 

-4-

U.S.S.G. § 1B1.10, cmt. n. 4A.1 Both courts of appeals that have considered this

issue have reached the same conclusion, see United States v. Forman, 553 F.3d

585, 588–89 (7th Cir. 2008), cert. denied, 129 S.Ct. 2817 (2009); United States v.

Holmes, 323 Fed. App’x 848, 850 (11th Cir. Apr. 22, 2009) (unpublished), and we

are aware of no decision to the contrary.

Mr. Fontenot argues that the Supreme Court overturned Application Note

4A in United States v. Johnson, 529 U.S. 694 (2000). In Johnson, the Court

considered whether 18 U.S.C. § 3583(h), which authorizes a district court to

impose an additional term of supervised release following the reimprisonment of

a person who violates the conditions of his initial term of release, violates the Ex

Post Facto Clause. 529 U.S. at 696. In analyzing the issue, the Court stated that

it “attribute[d] postrevocation penalties to the original conviction” and that such

penalties “relate to the original offense.” Id. at 701. The Court went on to state

that “postrevocation sanctions [are] part of the penalty for the initial offense.” Id.

at 700. Mr. Fontenot appears to argue that Application Note 4A, which instructs

that the “term of imprisonment imposed upon revocation of supervised release” is

distinct from the “term of imprisonment” subject to a reduction under §

3582(c)(2), is inconsistent with Johnson and must be disregarded. We do not read
-5-

Johnson so broadly. That case addressed an issue entirely distinct from the one at

hand: the imposition of an additional term of supervised release under § 3583(h). 

It did not involve the reduction of a previous sentence for release violations under

§ 3582(c), and it did not consider the Guidelines or the application of U.S.S.G. §

1B1.10. In short, nothing in Johnson affected or was intended to affect § 1B1.10

or the framework under 18 U.S.C. § 3582(c)(2).

III. CONCLUSION

The district court’s denial of Mr. Fontenot’s motion for a reduced sentence

is AFFIRMED.