*

 This order and judgment is not binding precedent except under the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

February 18, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LARRY HODGE,

Defendant-Appellant.

No. 09-6175

(D.Ct. No. 5:05-CR-00160-R-2)

(W.D. Okla.)

______________________________

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 Larry Eugene Hodge, a federal inmate appearing pro

se and a career offender, appeals the district court’s denial of his motion brought

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pursuant to 18 U.S.C. § 3582(c)(2) for the purpose of modifying his sentence

based on Amendment 709 to the United States Sentencing Guidelines

(“Guidelines” or “U.S.S.G.”). We exercise jurisdiction under 28 U.S.C. § 1291

and affirm.

I. Factual and Procedural Background

On November 2, 2005, Mr. Hodge pled guilty to knowingly and

intentionally distributing 23.2 grams of a mixture or substance containing a

detectable amount of cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1). 

See United States v. Hodge, 2009 WL 4071832, at *1 (10th Cir. Nov. 25, 2009)

(unpublished op.). After Mr. Hodge pled guilty, a federal probation officer

prepared a presentence report in conjunction with the 2005 Guidelines to

determine his recommended sentence. Based on Mr. Hodge’s criminal activity

involving distribution of 74.9 grams of crack, the probation officer applied

U.S.S.G. § 2D1.1(c)(4), for a base offense level of thirty-two. See id. However,

because Mr. Hodge possessed at least two prior felony drug convictions, he

qualified as a career offender under U.S.S.G. § 4B1.1, resulting in a higher base

offense level of thirty-four. See id. After applying a three-level decrease to the

career offender offense level for acceptance of responsibility, the probation

officer calculated Mr. Hodge’s total offense level at thirty-one. See id. Because

Mr. Hodge qualified as a career offender under U.S.S.G. § 4B1.1(b), his career

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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) (Nov. 1,

2008).

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offender criminal history category was VI, which, together with his total offense

level of thirty-one, resulted in a Guidelines range of 188 to 235 months

imprisonment. See id. On March 8, 2006, the district court sentenced Mr. Hodge

at the bottom of the sentencing range to 188 months imprisonment. See id. Mr.

Hodge did not appeal his conviction or sentence, including application of the

career offender guidelines. 

On May 6, 2008, the district court appointed Mr. Hodge counsel for the

purpose of filing a motion for a reduction of sentence pursuant to 18 U.S.C.

§ 3582(c)(2), based on Amendment 706 which modified the Drug Quantity Table

in U.S.S.G. § 2D1.1(c) downward two levels for crack cocaine offenses, effective

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

 Mr. Hodge then moved

for modification of his sentence, which the district court denied and this court

affirmed. See id. at **1-2. In affirming the district court’s denial of Mr. Hodge’s

§ 3582(c)(2) motion, we determined Amendment 706 did not affect sentences,

like his, based on the career offender guidelines in § 4B1.1, and that the Supreme

Court’s decision in United States v. Booker, 543 U.S. 220 (2005), did not apply to

sentencing modification proceedings. See id. at *2. 

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 The commentary to Amendment 709 states that it “simplifies the rules for

counting multiple prior sentences .... Under the amendment, the initial inquiry

will be whether the prior sentences were for offenses that were separated by an

intervening arrest .... If so, they are to be considered separate sentences, counted

separately, and no further inquiry is required.” U.S.S.G., Supp. to App. C,

Amend. 709 at 238. Based on our holding, addressed hereafter, that Amendment

709 does not apply retroactively to Mr. Hodge, we need not determine if it is

otherwise applicable to computation of Mr. Hodge’s criminal history score. We

note, however, Mr. Hodge’s two prior convictions, used in determining his career

offender status, occurred on April 10, 1997, and March 31, 2001, and were

separated by an intervening arrest. As a result, it is doubtful whether either his

criminal history score or his status as a career offender are affected by the

amendment. 

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On August 17, 2009, while Mr. Hodge’s aforementioned appeal was

pending before this court, he filed the instant pro se motion for modification of

his sentence under § 3582(c)(2), basing it primarily on Booker and Amendment

709 to the Guidelines. Amendment 709, which became effective November 1,

2007, modified §§ 4A1.1 and 4A1.2 regarding criminal history calculation and

“the counting of multiple prior sentences and the use of misdemeanor and petty

offenses in determining a defendant’s criminal history score.”2

 U.S.S.G., Supp. to

App. C, Amend. 709 at 238. Mr. Hodge also raised various other arguments,

collaterally attacking his sentence. The district court denied his motion, holding

Amendment 709 was inapplicable to his case because § 1B1.10(c) did not list

Amendment 709 as having retroactive application for the purpose of reducing his

2005 sentence. It also rejected Mr. Hodge’s Booker argument and noted his

remaining arguments collaterally attacking his sentence would best be addressed

in a motion under 28 U.S.C. § 2255. 

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II. Discussion

Mr. Hodge now appeals the district court’s denial of his pro se motion

based on Amendment 709 as well as Booker and its progeny. The government

opposes Mr. Hodge’s appeal and further points out that on September 15, 2009,

prior to filing his brief in the instant appeal, Mr. Hodge filed a third § 3582(c)

motion in the district court almost identical to the one filed in the instant case. 

On November 13, 2009, the district court denied Mr. Hodge’s third § 3582(c)

motion, from which Mr. Hodge has filed a notice of appeal, and briefing is

pending. For the purpose of judicial economy, we proceed to the instant appeal.

“‘We review de novo the district court’s interpretation of a statute or the

sentencing guidelines.’” United States v. 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)). 

“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. at 1111-12 (quoting Smartt, 129 F.3d at 540). 

The relevant part of § 3582, on which Mr. Hodge relies in bringing his

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action, 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). The Sentencing Commission’s policy

regarding retroactive application 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). 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. 

U.S.S.G. § 1B1.10(a)(1) (emphasis added). Subsection (c), referenced above,

does not list Amendment 709 as one of the retroactive amendments, so that a

sentence reduction based on that amendment is inconsistent with the

Commission’s policy statement. See U.S.S.G. § 1B1.10(c); United States v.

Peters, 524 F.3d 905, 907 (8th Cir.), cert denied, 129 S. Ct. 290 (2008). As a

result, even though Amendment 709, effective November 1, 2007, modified

§§ 4A1.1 and 4A1.2 to change the way certain prior convictions affect a

defendant’s criminal history calculation, it has no retroactive application to Mr.

Hodge’s 2005 sentence. As to Mr. Hodge’s Booker-type arguments, we have

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 The district court issued its order denying the instant motion on August

19, 2009, and Mr. Hodge filed his notice of appeal on September 2, 2009. In its

appeal brief, the government asks us to dismiss the appeal on timeliness grounds,

arguing we lack jurisdiction to consider it, given Mr. Hodge’s notice of appeal

“was at least four days out of time.” We consider the government’s argument as a

motion to dismiss the appeal and deny it. Under the 2009 version of the Federal

Rules of Appellate Procedure, which applies in the instant appeal, we compute

any period of time specified in the Rules to “[e]xclude intermediate Saturdays,

Sundays, and legal holidays when the period is less than 11 days, unless stated in

calendar days.” Fed. R. App. P. 26(a)(2) (2009). In this case, Mr. Hodge timely

filed his appeal on September 2, 2009, which is within ten days of the district

court’s order, excluding intermediate Saturdays and Sundays. 

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unequivocally held the Supreme Court’s holding in Booker has no bearing on

sentencing modification proceedings brought pursuant to § 3582(c)(2). See

United States v. Rhodes, 549 F.3d 833, 840 (10th Cir. 2008), cert. denied, 129 S.

Ct. 2052 (2009). We and the district court are bound by such precedent. See

United States v. Dryden, 563 F.3d 1168, 1171 n.1 (10th Cir.), cert. denied, 130 S.

Ct. 311 (2009). Accordingly, the district court did not abuse its discretion in

failing to apply either Amendment 709 or the holding in Booker to Mr. Hodge’s

sentence for the purpose of denying his § 3582(c)(2) motion for a reduction in his

sentence. 

III. Conclusion

We AFFIRM the district court’s order denying Mr. Hodge’s appeal filed

pursuant to 18 U.S.C. § 3582(c)(2). We also DENY the government’s motion to

dismiss the appeal on timeliness grounds.3

 We caution Mr. Hodge that we may

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order him to show cause why any pending or future appeals to modify his

sentence under 18 U.S.C. § 3582(c)(2) based on retroactive application of

Amendment 709 or the holding in Booker should not be summarily dismissed on

the same grounds as addressed in this appeal.

Entered by the Court:

WADE BRORBY

United States Circuit Judge

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