*

 This order and judgment is not binding precedent except under the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

April 2, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

IKE MCCLOUD, JR.,

Defendant-Appellant.

No. 09-3295

(D.Ct. No. 2:96-CR-20031-CM-1)

(D. Kan.)

____________________________

ORDER AND JUDGMENT*

Before BARRETT, ANDERSON, and BRORBY, Senior 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.

Defendant-Appellant Ike McCloud, Jr., a federal inmate appearing through

counsel, appeals the district court’s denial of his motion brought pursuant to 18

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U.S.C. § 3582(c)(2) for the purpose of preserving for future appeal a reduction of

his sentence below the United States Sentencing Guidelines (“Guidelines” or

“U.S.S.G.”) range pursuant to United States v. Booker, 543 U.S. 220 (2005). We

exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I. Factual and Procedural Background

In 1996, a jury convicted Mr. McCloud on two counts of distribution of

cocaine base (crack cocaine), and the district court sentenced him to 360 months

on each count, to run concurrently, which was at the low end of the Guidelines

range of 360 months to life imprisonment. See United States v. McCloud, 127

F.3d 1284, 1286, 1290 (10th Cir. 1997). In 1997, this court affirmed his

convictions and sentences. Id. at 1292. Thereafter, Mr. McCloud unsuccessfully

filed a motion, under 28 U.S.C. § 2255, to vacate or correct his sentence on

grounds a jury, rather than the district court, should have determined the drug

quantity attributed to him, which the district court denied and this court affirmed. 

See United States v. McCloud, 48 F.App’x 318, 318-19 (10th Cir. Oct. 16, 2002)

(unpublished op.).

In November 2008, Mr. McCloud filed a pro se motion, and later his

counsel filed a motion, under 18 U.S.C. § 3582(c)(2) to reduce his sentence based

on Amendment 706, which modified the Drug Quantity Table in U.S.S.G.

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

Amends. 712 and 713 (Mar. 3, 2008 Supp.); U.S.S.G. § 1B1.10(a)(2).

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§ 2D1.1(c) downward two levels for crack cocaine offenses, effective November

1, 2007, and retroactive as of March 3, 2008.1

 He argued that his sentencing

range of 360 months to life imprisonment should be reduced two levels under

Amendment 706, to a range of 292 to 365 months in prison, and that his sentence

should be further reduced under Booker, based on the Supreme Court’s

determination the Guidelines are merely advisory, for a resulting sentence at the

statutory minimum of 240 months imprisonment. As part of his Booker argument,

he contended that precluding any further reduction of his sentence under U.S.S.G.

§ 1B1.10, which mandates sentence reductions only by amendment to the

Guidelines, would violate his Sixth Amendment rights and the separation of

powers doctrine. Thereafter, this court issued decisions in United States v.

Rhodes, 549 F.3d 833, 839-40 (10th Cir. 2008), cert. denied, 129 S. Ct. 2052

(2009); and United States v. Pedraza, 550 F.3d 1218, 1220-22 (10th Cir. 2008),

cert. denied, 129 S. Ct. 2406 (2009), holding § 1B1.10 limits the courts from

imposing below-Guidelines sentences in conjunction with § 3582 and is

unaffected by the decision in Booker. Following those decisions, Mr. McCloud

conceded that if the provisions of § 1B1.10 are mandatory, then his request for a

below-Guidelines sentence should be denied, but he preserved the issue for appeal

and again asked for relief of at least a two-level reduction under Amendment 706

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for a sentence of 292 months imprisonment, at the low end of the Guidelines

range. He also admitted he committed a number of post-sentencing infractions,

but argued they mainly constituted minor infractions which should not affect his

request for a two-level sentence reduction. 

While the district court determined it had discretion to reduce Mr.

McCloud’s sentence by two offense levels under Amendment 706 and that he

qualified for such a reduction, it denied his request based on his post-sentencing

conduct while in custody, stating it had a responsibility to consider the § 3553(a)

factors, including “the nature and seriousness of the danger to any person or the

community that may be posed by a reduction in the defendant’s term of

imprisonment.” R., Vol. 2 at 20-21. Under this factor, it determined his prior

conduct warranted a denial based on his committing at least thirty-three

disciplinary infractions on different dates, including six infractions for intoxicants

and/or drugs or drug items; three instances of possession of dangerous weapons;

four occasions of engaging in violent acts such as assault and fighting; and one

instance of threat of bodily harm. As part of its order, it also recognized Mr.

McCloud’s concession regarding our holding that § 1B1.10 and Booker did not

allow below-Guidelines sentencing in § 3582 proceedings. 

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II. Discussion

Mr. McCloud now appeals the district court’s denial of his 18 U.S.C.

§ 3582(c)(2) motion, claiming district courts should have discretion to consider

below-Guidelines sentences in § 3582 proceedings under Booker. In making this

argument, he concedes this court has held U.S.S.G. § 1B1.10 does not allow a

below-Guidelines sentence in § 3582 proceedings and we are bound by such

precedent. However, he notes the Supreme Court recently granted review of this

issue in Dillon v. United States, 130 S. Ct. 797 (Dec. 7, 2009), on appeal from the

Third Circuit, and he wishes to preserve the issue as he did before the district

court. In making his argument, Mr. McCloud is claiming the Sentencing

Commission policy statement in § 1B1.10 cannot limit the district court’s

jurisdiction and that the principles announced in Booker should apply once a

court’s jurisdiction is invoked under § 3582(c). The government opposes Mr.

McCloud’s appeal, pointing out the district court did not abuse its discretion in

denying the two-level adjustment based on its determination of the possible

danger Mr. McCloud posed to others, as indicated by his post-sentence conduct,

and in denying a below-Guidelines sentence for lack of jurisdiction based on our

precedent. 

In addressing Mr. McCloud’s appeal, “‘[w]e review de novo the district

court’s interpretation of a statute or the sentencing guidelines.’” United States v.

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Brown, 556 F.3d 1108, 1111 (10th Cir.) (quoting United States v. Smartt, 129

F.3d 539, 540 (10th Cir. 1997)), cert. denied, 130 S. Ct. 219 (2009). “We review

for an abuse of discretion a district court’s decision to deny a reduction in

sentence under 18 U.S.C. § 3582(c)(2).” Id. (relying on United States v.

Dorrough, 84 F.3d 1309, 1311 (10th Cir. 1996)).

Applying our standard of review, we turn to the relevant part of § 3582, on

which Mr. McCloud brought his motion for a reduction of sentence and the

district court relied in denying his motion. It states:

[I]n 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 pursuant to 28 U.S.C.

[§] 994(o), ... the court may reduce the term of imprisonment, after

considering the factors set forth in section 3553(a) to the extent that

they are applicable, if such a reduction is consistent with applicable

policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2) (emphasis added). As previously mentioned, the

Sentencing Commission lowered crack cocaine sentences by promulgating

Amendment 706 to the Guidelines, which is a reduction that may be granted under

§ 3582(c)(2). See U.S.S.G. § 1B1.10(a)(2) (Nov. 1, 2009). Similarly, § 1B1.10

of the Sentencing Commission’s policy states:

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). ... 

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[A]ny such reduction in the defendant’s term of imprisonment shall

be consistent with this policy statement.

U.S.S.G. § 1B1.10(a)(1) (emphasis added). However, it also states that “the court

shall substitute only the amendments listed,” leaving “all other guideline

application decisions unaffected,” § 1B1.10(b)(1), and “the court shall not reduce

the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this

policy statement to a term that is less than the minimum of the amended guideline

range ....” § 1B1.10(b)(2). Subsection (c), as referenced in these provisions,

merely lists the amendments covered, which include Amendment 706. See

§ 1B1.10(c). 

In United States v. Price, we held “a district court is authorized to modify a

defendant’s sentence only in specified instances where Congress has expressly

granted the court jurisdiction to do so” and explained that by the very terms of

§ 3582(c)(2) “the court only has authority to modify a sentence when the range

has been lowered by the Sentencing Commission pursuant to 28 U.S.C. [§]

994(o).” 438 F.3d 1005, 1006-07 (10th Cir. 2006) (internal quotation marks and

citations omitted). In United States v. Dryden, we rejected an argument similar to

Mr. McCloud’s that the Sentencing Commission’s policy statement in

§ 1B1.10(a)(2) impermissibly limited the district court’s jurisdiction to reduce a

sentence under § 3582(c)(2). See 563 F.3d 1168, 1170 (10th Cir.), cert. denied,

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130 S. Ct. 311 (2009). We held the language in § 3582(c)(2), stating that a court

may reduce the term of imprisonment when “a sentencing range ... has

subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C.

[§] 994(o),” places a statutory limitation on resentencing and “is identical to the

requirement in U.S.S.G. § 1B1.10(a)(2) that the amendment to the guidelines

‘have the effect of lowering the defendant’s applicable guideline range.’” Id. at

1170-71 (citation omitted). Finally, in Rhodes, as previously mentioned, we

explained the principles announced in Booker concerning 18 U.S.C. § 3553

applied only to original sentences and not to proceedings under § 3582(c)(2), see

549 F.3d at 839-40, and concluded in Pedraza, 550 F.3d at 1220-22, that

§ 1B1.10 limits the courts from imposing below-Guidelines sentences in

conjunction with § 3582. We find the principles in Pedraza, Rhodes, Dryden, and

Price fully dispositive of Mr. McCloud’s arguments and further note “we are

bound by the precedent of prior panels.” See Dryden, 563 F.3d at 1171 n.1

(internal quotation marks and citation omitted). 

In addition, the Supreme Court pointed out in Booker that the Sentencing

Commission “is an independent agency that exercises policymaking authority

delegated to it by Congress” and Congress’s delegation of authority to that

Commission to promulgate Guidelines does not violate the separation of powers

principles or otherwise exceed Congress’s powers. See 543 U.S. at 242-43. After

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severing and excising 18 U.S.C. §§ 3553(b)(1) and 3742(e) of the Sentencing

Reform Act of 1984, as amended, the Booker Court determined “[t]he remainder

of the Act satisfies the Court’s constitutional requirements,” which it listed as

being: “(1) constitutionally valid, (2) capable of functioning independently, and

(3) consistent with Congress’ basic objectives in enacting the statute.” Id. at 258-

59 (internal quotation marks and citations omitted). Of course, the remainder of

the Sentencing Reform Act to which the Booker Court referred includes

§ 3582(c).

Applying these principles to the case presented here, it is clear § 1B1.10

limits a district court’s authority to reduce a sentence under § 3582(c). This

limitation prohibited the district court from reducing Mr. McCloud’s term of

imprisonment below the applicable Guidelines range. In contrast, the district

court had discretion under § 3582(c) to reduce Mr. McCloud’s sentence two

offense levels under Amendment 706, but it declined to do so based on Mr.

McCloud’s multitude of disciplinary infractions, including at least four violent

acts. For these reasons, we conclude Mr. McCloud cannot prevail on his

constitutional and Booker arguments, and the district court did not abuse its

discretion in failing to apply Amendment 706. 

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III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s order denying

Mr. McCloud’s motion filed pursuant to 18 U.S.C. § 3582(c)(2). 

Entered by the Court:

WADE BRORBY

United States Circuit Judge

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