FILED

United States Court of Appeals

Tenth Circuit

August 16, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v. No. 09-6196

CHARLES W. MCGEE,

 Defendant-Appellant.

____________________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

JUAN CARLOS ANGULO-LOPEZ,

 Defendant-Appellant.

____________________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

TERESA MECHELL GRIFFIN,

 Defendant-Appellant.

_____________________________

 No. 09-6197 

 No. 09-6198

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UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

DANILO MARTINEZ-PEREZ,

 Defendant-Appellant.

_____________________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

RICORTE ANGULO-LOPEZ,

 Defendant-Appellant.

 No. 09-6199

 No. 09-6202

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. 5:91-CR-00220-D)

Submitted on the briefs:

Susan M. Otto, Federal Public Defender, Oklahoma City, Oklahoma, for

Defendants-Appellants.

Sanford C. Coats, United States Attorney, Jonathon E. Boatman and Leslie M.

Maye, Assistant United States Attorneys, Oklahoma City, Oklahoma, for

Plaintiff-Appellee.

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*

 The Honorable Michael Daly Hawkins, Senior Circuit Judge, Ninth

Circuit Court of Appeals, sitting by designation.

** After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially assist in the

determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R.

34.1(G). The cases are, therefore, submitted without oral argument.

3

Before BRISCOE, Chief Judge, HAWKINS* and MURPHY, Circuit Judges.

BRISCOE, Chief Judge.

The defendants in these consolidated appeals, Charles McGee, Juan Carlos

Angulo-Lopez, Teresa Griffin, Danilo Martinez-Perez, and Ricorte Angulo-Lopez,

appeal from the district court’s denial of their respective motions for reduction of

their sentences pursuant to 18 U.S.C. § 3582(c)(2). Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, we affirm.**

I

Defendants were indicted by a federal grand jury on various drug and

firearms charges, including conspiracy to distribute powder and crack cocaine. 

On August 9, 1992, defendant McGee pled guilty to possession of approximately

nine ounces of crack cocaine with intent to distribute. He was subsequently

sentenced to 360 months’ imprisonment.

The remaining defendants proceeded to trial on August 10, 1992. At the

conclusion of all the evidence, the jury found each defendant guilty, in pertinent

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part, of conspiring to distribute crack cocaine. Defendants Juan Carlos AnguloLopez, Griffin, and Martinez-Perez were each sentenced to life in prison. 

Defendant Ricorte Angulo-Lopez was sentenced to 400 months’ imprisonment;

that sentence was subsequently reduced, based on Amendment 505 to the

Sentencing Guidelines (which altered the offense levels and quantity thresholds

for drug-related offenses), to 293 months. 

Approximately five years later, “[o]n November 1, 2007, the United States

Sentencing Commission promulgated Amendment 706, which amended the Drug

Quantity Table in U.S.S.G. § 2D1.1(c).” United States v. Rhodes, 549 F.3d 833,

835 (10th Cir. 2008). “Amendment 706 provided a 2-level reduction in base

offense levels for crack cocaine-related offenses.” Id. “On December 11, 2007,

the Sentencing Commission promulgated Amendments 712 and 713 which,

together, operated to make Amendment 706 retroactive.” Id. “Amendments 712

and 713 themselves became effective as of March 3, 2008.” Id.

In 2008 and early 2009, defendants each moved to reduce their sentences

pursuant to 18 U.S.C. § 3582(c)(2) based upon Amendment 706. Defendants

argued that even though Amendment 706 did not have the effect of lowering their

guideline ranges, the district court had authority, in light of the decision in United

States v. Booker, 543 U.S. 220 (2005), to engage in full-scale resentencings of

defendants and freely ignore the Sentencing Commission’s policy statements to

the contrary in U.S.S.G. § 1B1.10. The district court, however, denied

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defendants’ motions, concluding that the requested reductions were not authorized

under § 3582(c)(2) because Amendment 706 did not have the effect of lowering

the defendants’ guideline ranges. Defendants each appealed, and the appeals

were ultimately consolidated for purposes of disposition.

II

Defendants assert two issues on appeal. First, they contend the district

court erred in construing § 1B1.10 of the Sentencing Guidelines as a limitation on

its authority to consider their requests for relief and reduce their sentences. 

Second, defendants contend the Supreme Court’s decision in Booker is applicable

to proceedings conducted pursuant to § 3582(c)(2), and requires a district court

“to determine a sentence sufficient, but not greater than necessary, to achieve the

statutory goals of sentencing when a defendant is properly before the court

pursuant to an ameliorative sentencing guideline amendment.” Aplt. Br. at 24. In

other words, defendants argue, a § 3582(c)(2) motion authorizes a district court to

effectively “resentence” a defendant.

We review these issues, both of which concern the scope of the district

court’s authority in a § 3582(c)(2) proceeding, de novo. Rhodes, 549 F.3d at 837. 

As we shall describe in greater detail below, both issues are foreclosed by the

Supreme Court’s recent decision in Dillon v. United States, 130 S.Ct. 2683

(2010).

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A

Section 3582(c), entitled “Modification of an imposed term of

imprisonment,” provides:

The court may not modify a term of imprisonment once it has been

imposed except that—

* * *

(2) 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 pursuant to 28 U.S.C. §

994(o), upon motion of the defendant or the Director of the Bureau

of Prisons, or on its own motion, 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). 

Section 1B1.10 of the Sentencing Guidelines, entitled “Reduction in Term

of Imprisonment as a Result of Amended Guideline Range (Policy Statement),” in

turn provides as follows:

(a) Authority.—

(1) In General.—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.

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(2) Exclusions.—A reduction in the defendant’s term of

imprisonment is not consistent with this policy statement and

therefore is not authorized under 18 U.S.C. § 3582(c)(2) if–

(A) none of the amendments listed in subsection (c) is

applicable to the defendant; or

(B) an amendment listed in subsection (c) does not have

the effect of lowering the defendant’s applicable

guideline range.

(3) Limitation.—Consistent with subsection (b), proceedings

under 18 U.S.C. § 3582(c)(2) and this policy statement do not

constitute a full resentencing of the defendant.

(b) Determination of Reduction in Term of Imprisonment.—

(1) In General.—In determining whether, and to what extent, a

reduction in the defendant’s term of imprisonment under 18

U.S.C. § 3582(c)(2) and this policy statement is warranted, the

court shall determine the amended guideline range that would

have been applicable to the defendant if the amendment(s) to

the guidelines listed in subsection (c) had been in effect at the

time the defendant was sentenced. In making such

determination, the court shall substitute only the amendments

listed in subsection (c) for the corresponding guideline

provisions that were applied when the defendant was sentenced

and shall leave all other guideline application decisions

unaffected.

(2) Limitations and Prohibition on Extent of Reduction.—

(A) In General.—Except as provided in subdivision (B),

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 determined under

subdivision (1) of this subsection.

* * *

(c) Covered Amendments.—Amendments covered by this policy

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statement are listed in Appendix C as follows: . . . 706 . . . .

U.S.S.G. § 1B1.10 (emphasis added).

B

While these consolidated appeals were pending, the Supreme Court issued

its decision in Dillon. The defendant in Dillon, like the defendants in these

consolidated appeals, asserted “‘[t]here [was] no practical or functional difference

between a resentencing pursuant to § 3582(c)(2) and any other resentencing.’”

130 S.Ct. at 2690 (quoting Defendant’s Brief at 18). The Supreme Court rejected

that notion:

By its terms, § 3582(c)(2) does not authorize a sentencing or

resentencing proceeding. Instead, it provides for the “modif[ication

of] a term of imprisonment” by giving courts the power to “reduce”

an otherwise final sentence in circumstances specified by the

[Sentencing] Commission. It is also notable that the provision

applies only to a limited class of prisoners—namely, those whose

sentence was based on a sentencing range subsequently lowered by

the Commission. Section 3582(c)(2)’s text, together with its narrow

scope, shows that Congress intended to authorize only a limited

adjustment to an otherwise final sentence and not a plenary

resentencing proceeding.

Id. at 2690-91 (citations omitted).

Continuing, the Court concluded that § 3582(c)(2) “establishes a two-step

inquiry.” Id. at 2691. Under step one of this inquiry, the Court held, “§

3582(c)(2) requires [a district] court to follow the Commission’s instructions in §

1B1.10 to determine the prisoner’s eligibility for a sentence modification and the

extent of the reduction authorized.” Id. Only if a district court “determine[s] that

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1

 We note, in passing, that the Court’s holdings in Dillon are consistent

with our prior decision in Rhodes, where we held that pursuant to § 3582(c)(2)

the policy statements in § 1B1.10 are binding on district courts and that “Booker

simply has no bearing on sentencing modification proceedings conducted under §

3582(c)(2).” 549 F.3d at 840. 

9

a reduction is consistent with § 1B1.10” may it proceed to step two of the inquiry. 

Id. “At step two of the inquiry,” the Court held, “§ 3582(c)(2) instructs a

[district] court to consider any applicable § 3553(a) factors and determine

whether, in its discretion, the reduction authorized by reference to the policies

relevant at step one is warranted in whole or in part under the particular

circumstances of the case.” Id. at 2692. “Because reference to § 3553(a) is

appropriate only at the second step of this circumscribed inquiry,” the Court

emphasized, “it cannot serve to transform the proceedings under § 3582(c)(2) into

plenary resentencing proceedings.” Id. 

Finally, the Court concluded, “[g]iven the limited scope and purpose of §

3582(c)(2), . . . proceedings under that section do not implicate the interests

identified in Booker.”1

 Id. In particular, the Court emphasized that “the

sentence-modification proceedings authorized by § 3582(c)(2) are not

constitutionally compelled,” but rather “represent[] a congressional act of lenity

intended to give prisoners the benefit of later enacted adjustments to the

judgments reflected in the Guidelines.” Id. Consequently, the Court held, such

proceedings “do not implicate the Sixth Amendment right to have essential facts

found by a jury beyond a reasonable doubt.” Id. The Court also rejected the

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2

 In a post-Dillon supplemental brief, appellants argue, citing Justice

Stevens’ dissent in Dillon, that the policy statements in § 1B1.10 raise separationof-powers issues “because Congress never envisioned policy statements would be

used to enforce jurisdictional elements of the guidelines.” Aplt. Supp. Br. at 3. 

As the government notes in its own post-Dillon brief, however, this court has

previously rejected a similar separation-of-powers challenge to § 1B1.10. United

States v. Dryden, 563 F.3d 1168, 1171 (10th Cir. 2009) (holding that “the

‘lowering’ requirement of § 3582(c)(2) is identical to the requirement in USSG §

1B1.10(a)(2) that the amendment to the guidelines ‘have the effect of lowering

the defendant’s applicable guideline range.’”). Absent an intervening en banc

(continued...)

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notion that “the remedial aspect of [its] decision [in Booker] applies to

proceedings under [§ 3582(c)(2)] and requires that the Guidelines be treated as

advisory in such proceedings just as they are in other sentencing proceedings.” 

Id. at 2693. “Given the substantially different purpose of § 3582(c)(2) and the

circumscribed nature of proceedings under that section,” the Court held,

“requiring courts to honor § 1B1.10(b)(2)’s instruction not to depart from the

amended Guidelines range at such proceedings will create none of the confusion

or unfairness that led [it] in Booker to reject the Government’s argument for a

partial fix.” Id. 

C

The Court’s holdings in Dillon effectively dispose of both issues asserted

by defendants in these consolidated appeals. First, contrary to defendants’

assertions, the Court made clear in Dillon that under § 3582(c)(2) the Sentencing

Commission’s policy statements in § 1B1.10 are binding on district courts and

limit their authority to grant motions for reduction of sentences.2

 Second, and

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(...continued)

decision from this court or a superseding contrary decision by the Supreme Court,

Dryden is binding on us. United States v. Mitchell, 518 F.3d 740, 752 n.14 (10th

Cir. 2008). 

11

again contrary to defendants’ assertions, the Court made clear that proceedings

under § 3582(c)(2) are neither “sentencing [n]or resentencing proceeding[s],” id.

at 2690, and “that neither Booker’s constitutional nor remedial holding[s]” apply

to such proceedings, id. at 2693. As a result, we conclude the district court did

not err in denying defendants’ § 3582(c)(2) motions.

AFFIRMED.

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