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United States v. Muldrow

United States Court of Appeals, Tenth Circuit

June 1, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
LEALON MULDROW, Defendant-Appellant.

(D.C. No. 2:92-CR-20063-JWL-2) (D. Kan.)

Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.

ORDER AND JUDGMENT [*]

Scott M. Matheson, Jr. Circuit Judge

In 1993, Lealon Muldrow was convicted for possession with intent to distribute 4.294 kilograms of crack, in violation of 21 U.S.C. §§ 841 and 860. The district court followed the 1992 United States Sentencing Commission's Guidelines Manual ("U.S.S.G.")-the version of the Guidelines in effect at the time of the offense, see Peugh v. United States, 133 S.Ct. 2072, 2088 (2013)-and sentenced Mr. Muldrow to 360 months in prison. In 2008, he moved the district court for a reduced sentence under 18 U.S.C. § 3582(c)(2), which authorizes district courts to reduce previously imposed sentences in limited circumstances. The district court denied the motion and we affirmed. Muldrow v. United States, 306 F.App'x 427 (10th Cir. 2009) (unpublished). He tried again in 2014 with the same result in district court. Mr. Muldrow, proceeding pro se, [1] now appeals from that ruling. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. Factual History

In 1992, Mr. Muldrow burglarized an apartment, stealing a significant quantity of crack cocaine. United States v. Muldrow, 19 F.3d 1332, 1334 (10th Cir. 1994). He was ultimately convicted of possession with intent to distribute 4.294 kilograms of crack cocaine. Id.

Under the 1992 Guidelines, U.S.S.G. § 2D1.1(c)(3) imposed a base offense level of 38 for Mr. Muldrow's conviction. He received a two-point enhancement under U.S.S.G. § 2D1.2(a)(1) because his offense occurred within 1, 000 feet of a school and another two-point enhancement under U.S.S.G. § 3C1.1 for obstruction of justice. His total offense level was therefore 42, which, when combined with a criminal history category of V, resulted in a Guidelines sentencing range of 360 months to life. The court sentenced him to 360 months in prison.

B. Procedural History

In 2008, Mr. Muldrow first moved for a sentence reduction under 18 U.S.C. § 3582(c)(2), Muldrow, 306 F.App'x at 428, which allows a district court to reduce a previously imposed sentence if the applicable sentencing range has been lowered by an amendment to the Guidelines, 18 U.S.C. § 3582(c)(2). Mr. Muldrow argued he was eligible for a reduced sentence based on Guidelines Amendment 706. Muldrow, 306 F.App'x at 428. The district court denied the motion. Id. Mr. Muldrow appealed and we affirmed, concluding Amendment 706 would not change the Guidelines range for Mr. Muldrow's offense. Id.

In 2014, Mr. Muldrow again sought a reduced sentence under § 3582(c)(2), arguing Guidelines Amendments 591, 706, 750, and 782 retroactively reduce the Guidelines range applicable to his conviction. On December 8, 2014, the district court denied the motion. It denied the motion as to Mr. Muldrow's arguments about Amendments 591, 706, and 750, and explained it lacked authority to reduce his sentence based on those Amendments. It denied Mr. Muldrow's § 3582(c)(2) motion without prejudice as to Amendment 782, and referred that issue to the Federal Public Defender ("FPD") to determine whether Mr. Muldrow qualified for representation by the FPD and was eligible for a reduced sentence under Amendment 782. The district court instructed Mr. Muldrow that if the FPD declined to seek relief on his behalf, he could refile his motion on or after February 2, 2015.

According to Mr. Muldrow, the FPD did not contact him, so he refiled his motion on February 3, 2015, again seeking a reduced sentence under Amendments 591, 706, 750, and 782. The district court again denied the motion on February 17, 2015. It construed Mr. Muldrow's renewed arguments about Amendments 591, 706, and 750 as a motion for reconsideration, and rejected them. It denied the motion as to Amendment 782 because the amendment does not affect the Guidelines range applicable to Mr. Muldrow's conviction. Mr. Muldrow filed a notice of appeal on March 2, 2015, which was timely as to only the district court's February 17 order.

II. DISCUSSION

"We review both the denial of a § 3582(c)(2) motion and the denial of a motion for reconsideration for abuse of discretion." United States v. Randall, 666 F.3d 1238, 1243 n.6 (10th Cir. 2011). "However, we review de novo the district court's interpretation of a statute or the ...


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