*

This order and judgment is not binding precedent except under the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

September 17, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

Nos. 08-5081

 08-5097

v. (N.D. Oklahoma)

MICHAEL McCALISTER, 

Defendant - Appellant.

(D.C. No. CR-06-114-1-R and CR-07-

23-1-R)

ORDER AND JUDGMENT*

Before PORFILIO, 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.

On May 27, 1999, a second superceding indictment charged defendant and

appellant, Michael L. McCalister, and others with conspiracy to possess with

intent to distribute and to distribute various controlled substances, in violation of
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21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846, and 851(a)(1). A jury found McCalister

guilty, and he was sentenced to 290 months’ imprisonment.

In February 2008, McCalister, proceeding pro se, filed an original and an

amended motion for reduction of his sentence, pursuant to 18 U.S.C. § 3582(c). 

The district court denied both motions. McCalister thereafter filed a motion for

reconsideration of the denial of his § 3582 motion, which the district court also

denied. In appeal number 08-5081, McCalister appeals the district court’s first

denial. In appeal number 08-5097, McCalister appeals the district court’s refusal

to reconsider its earlier denial. In response to a letter from McCalister which our

court construed as a motion to consolidate, we have consolidated the two appeals. 

We affirm.

The original conspiracy of which McCalister was found guilty involved

possession with intent to distribute and the distribution of cocaine, cocaine base,

methamphetamine, marijuana and heroin, as well as the use of communications

facilities in connection with the drug offenses. Prior to trial, the government

informed McCalister that it intended to seek enhancement of his sentence based

on his three prior felony convictions, including prior felony convictions for armed

robbery, robbery with a firearm, shooting with intent to kill and possession of

drugs in a penal institution.

Following the jury’s finding of guilt, and in preparation for sentencing

under the United States Sentencing Commission, Guidelines Manual (“USSG”),
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the United States Probation Office prepared a presentence report (“PSR”). The

PSR described McCalister’s involvement in the conspiracy as follows:

McCalister’s involvement in the conspiracy consisted of delivering

controlled substances and collecting drug proceeds for [coconspirators]. Over the life of the conspiracy McCalister possessed,

delivered and distributed in excess of 454.5 grams of cocaine, 28.35

grams of heroin, 498.5 grams of methamphetamine and 2.7 kilograms

of marijuana. This is a conservative approximation based upon

arrest[s], controlled buys, confidential sources and investigating

agents . . . 

PSR at ¶ 35, R. Vol. 2. Using the 1998 version of the Guidelines, the PSR

calculated that the total quantity of drugs attributable to McCalister was the

equivalent of 1,119 kilograms, which, pursuant to USSG §2D1.1, provided for a

base offense level of 32.

However, because McCalister was over eighteen years old at the time of the

offense, the offense of conviction was a controlled substance offense, and because

he had two prior felony convictions for crimes of violence and/or controlled

substance violations, he was classified as a career offender under USSG §4B1.1. 

Pursuant to USSG §4B1.1, McCalister’s base offense level was increased to 37,

because the statutory maximum sentence for his offense of conviction (violation

of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 851(a)(1)) was life in prison. After a

three level decrease for acceptance of responsibility, McCalister’s total adjusted

offense level was 34. With a criminal history category of VI, the Guideline

sentencing range was 262 to 327 months.
-4-

At sentencing, the district court accepted the PSR’s calculation of

McCalister’s sentence and sentenced him to 290 months. McCalister made no

objection to the PSR. Our court affirmed McCalister’s conviction and sentence

on direct appeal. United States v. Busby, 16 Fed. Appx. 817 (10th Cir. 2001)

(unpublished). We also affirmed the denial of his petition for habeas relief. 

United States v. McCalister, 165 Fed. Appx. 599 (10th Cir. 2006) (unpublished).

On February 13, 2008, McCalister filed his pro se motion for a reduction of

his sentence pursuant to 18 U.S.C. § 3582(c)(2). On May 5, 2008, he filed an

amended motion to reduce his sentence under § 3582. He sought a sentence

reduction on the ground that the district court erred in failing to apply

Amendment 591 of the Guidelines in calculating McCalister’s sentence. As the

district court observed, Amendment 591, which is retroactive, revised two

sections of the Guidelines: USSG §1B1.2 “to clarify that the sentencing court

must apply the offense guideline referenced in the Statutory Index for the statute

of conviction, without regard to relevant conduct”; and USSG §2D1.2, which

addressed a circuit conflict and clarified that the enhanced penalties of §2D1.2

apply only in a case in which the defendant was convicted of an offense

specifically referenced in that guideline. Order at 2-3. The district court further

explained that there are two reasons why Amendment 591 has no relevance to this

case and its application would not have resulted in a shorter sentence for

McCalister: (1) in imposing the sentence, the district court used the Statutory
-5-

Index in determining the applicable offense guideline, as Amendment 591

requires; and (2) McCalister’s guideline range had been determined based upon

USSG §2D1.1, not §2D1.2 (which Amendment 591 modified).

Under 18 U.S.C. § 3582(c)(2), a court may modify a sentence if “a

sentencing range . . . has subsequently been lowered by the Sentencing

Commission pursuant to 28 U.S.C. 994(o).” We review for an abuse of discretion

a district court’s decision to deny a reduction in sentence under § 3582(c)(2). 

United States v. Dorrough, 84 F.3d 1309, 1311 (10th Cir. 1996). We review de

novo a district court’s interpretation of the Guidelines and other legal issues. 

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

The two orders by the district court, denying McCalister’s motions for

reduction of sentence, clearly and explicitly explain why Amendment 591

provides no relief for McCalister, and does not entitle him to a reduction in

sentence. Moreover, as the government points out, McCalister’s career offender

status led to the particular offense level he received, which, in turn, determined

his sentencing range. Amendment 591 has no bearing on the career offender

provisions.

We have carefully reviewed the parties’ briefs, the record, the various

sentencing decisions, and the district court’s orders on the present issue. For

substantially the same reasons as laid out by the district court in its two orders,
-6-

we AFFIRM the denial of the motion for reduction of sentence. McCalister’s

motion to proceed in forma pauperis on appeal, however, is GRANTED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge