*

This order and judgment is not binding precedent except under the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.

FILED

United States Court of Appeals

Tenth Circuit

May 14, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 08-3283

v. (D. Kansas)

MYLAN BROWN, a/k/a Tommy

Davis, a/k/a Aric Gregory, a/k/a Big

Kev,

Defendant-Appellant.

(D.C. No. 2:03-CR-20149-KHV-02)

ORDER AND JUDGMENT*

Before HENRY, Chief Judge, HOLLOWAY, and GORSUCH, 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.
1

 Amendment 706 to U.S.S.G. § 2D 1.1(c), which modified the Drug

Quantity Table downward two levels for crack cocaine, became effective

November 1, 2007 and retroactive as of March 3, 2008. See U.S.S.G. Supp. to

App’x C, Amend. 706 (Reason for Amend.); U.S.S.G. § 1B1.10(a) and (c);

Amends. 712 and 713 (Mar. 3, 2008 Supp.).

-2-

Mylan Brown challenges the district court’s order denying his motion for

sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). Because Mr. Brown’s

advisory guideline range would not change with the retroactive application of the

Amendment 706, exercising our jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a), we affirm.

In November 2004, Mr. Brown pleaded guilty to an offense involving 

cocaine base. The sentencing court found Mr. Brown responsible for 5.45

kilograms of cocaine base and 103.6 kilograms of powder cocaine. The court

adopted the presentence report’s recommendations that calculated his base offense

level to be 38, which was the base offense level for cocaine base quantities of 1.5

kilograms or more under U.S.S.G. § 2D1.1(c)(1) (2004). After applying a

downward departure for substantial assistance, the court sentenced him to 262

months.

Mr. Brown filed a motion in the district court to modify his sentence

pursuant to the retroactive application of Amendment 706 of the Guidelines.1

 

Reviewing the motion, the district court determined that Mr. Brown’s base

offense level remained at 38, which was the base offense level for cocaine base
2

 U.S.S.G. § 1B1.10(a)(1) as amended effective May 1, 2008 provides:

In a case in which a defendant is serving a term of imprisonment, and

the guideline range applicable to that defendant has subsequently been

lowered as a result of an amendment to the Guidelines Manual listed in

subsection (c) below, the court may reduce the defendant’s term of

imprisonment as provided by 18 U.S.C. 3582(c)(2). As required by 18

U.S.C. 3582(c)(2), any such reduction in the defendant’s term of

imprisonment shall be consistent with this policy statement. 

-3-

quantities of 4.5 kilograms or more under U.S.S.G. § 2D1.1(c)(1) (2008). The

district court thus denied the motion.

Before this court, Mr. Brown appeals the district court’s refusal to also

consider his motion through the lens of 18 U.S.C. § 3553(a). He argues that the

United States Sentencing Commission’s recent 2008 revision to U.S.S.G. §

1B1.10(b)2

 violates United States v. Booker, 543 U.S. 220 (2005), by effectively

rendering the crack guidelines mandatory. He maintains that the district court

remained at liberty to reduce his sentence under § 3553(a)’s sentencing factors. 

To constrain the district court otherwise, he argues, would be contrary to Booker,

543 U.S. at 245-46.

We review de novo the district court’s scope of authority in a resentencing

proceeding under 18 U.S.C. § 3582(c)(2) as well as its interpretation of a statute

or the Guidelines. United States v. Rhodes, 549 F.3d 833, 837 (10th Cir. 2008),

petition for cert. filed, 08-8318 (U.S. Jan. 21, 2009); United States v. Sharkey,

543 F.3d 1236, 1238 (10th Cir. 2008). We review the district court’s decision to
-4-

deny a reduction in sentence under § 3582(c)(2) for an abuse of discretion.

Sharkey, 543 F.3d at 1238. “When ‘a motion for [a] sentence reduction is not a

direct appeal or a collateral attack under 28 U.S.C. § 2255, the viability of [the]

motion depends entirely on 18 U.S.C. § 3582(c).’” Id. (quoting United States v.

Smartt, 129 F.3d 539, 540 (10th Cir. 1997)).

In Rhodes, we explained that 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 Mr. Brown’s, we held § 3582(c)(2) does not permit a full resentencing based

on only 18 U.S.C. § 3553 factors and objectives. Id. at 840. Section 3582(c) 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. (quoting 18 U.S.C. §

3582(c)(2)). Even before Rhodes, we held “that Booker does not provide a basis

for a sentence reduction under § 3582(c)” 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).

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.
3

Before us, Mr. Brown raises, for the first time, the related argument that

our treatment of § 1B1.10(a)(2)’s limitation of the district court’s authority

violates the non-delegation doctrine. Reviewing for plain error, we note that we

have rejected the identical argument and that there is no error here. See United

States v. Dryden, ___ F.3d ___, 2009 WL 1153690, at *3 (10th Cir. Apr. 30,

(continued...)

-5-

§ 1B1.10 so it expressly denies a district court’s authority to grant a downward

variance, stating “‘the court shall not reduce the defendant’s 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, 1221 (10th Cir. 2008)

(quoting U.S.S.G. § 1B1.10(b)(2)(A) (2008)). Arguably, because the district

court resentenced Mr. Brown in July 2008, this 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 judge’s 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. Brown was entitled to a

reduction under Amendment 706 and not whether any other reduction of his

sentence was warranted under the § 3553(a) sentencing factors. It thus appears

that Mr. Brown, having noted the circuit split we recognized in Rhodes, 549 F.3d

at 837, is preserving a foreclosed issue for possible en banc review or appeal to

the United States Supreme Court.3
3

(...continued)

2009) (“Because the language of USSG § 1B 1.10(a)(2) challenged by Mr.

Dryden as resulting from an unconstitutional delegation of Congressional

authority is merely a paraphrase of Congress’s own language, his delegation

argument fails.”).

-6-

The crux of Mr. Brown’s arguments have been reviewed and rejected by

another panel of this court. We AFFIRM the district court’s order denying Mr.

Brown’s motion filed pursuant to 18 U.S.C. § 3582(c)(2) for a downward variance

under 18 U.S.C. § 3553(a).

Entered for the Court,

Robert H. Henry

Circuit Judge