United States v. Smith
Opinion
Appellate Case: 24-4036 Document: 010111097212 Date Filed: 08/20/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 20, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-4036 (D.C. No. 2:16-CR-00020-DN-1) MARLON ALONZO SMITH, (D. Utah)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, EID, and ROSSMAN, Circuit Judges. _________________________________
Marlon Alonzo Smith, proceeding pro se, appeals the district court’s denial of
his motion to reduce his sentence and its refusal to reconsider that denial. Because
the district court lacked authority to vary downward from the amended guidelines
sentencing range, we affirm.
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-4036 Document: 010111097212 Date Filed: 08/20/2024 Page: 2
I. Background
A jury convicted Smith of possessing methamphetamine with an intent to
distribute, in violation of 21 U.S.C. § 841(a)(1). At sentencing, the district court
calculated a total offense level of 38 and a criminal history category of III—including
a two-point increase for committing the offense while on probation. His guideline
imprisonment range was 292 to 365 months, but the district court varied downward
after considering Smith’s history and characteristics pursuant to 18 U.S.C.
§ 3553(a)(1). He was sentenced to 180 months’ imprisonment, and we affirmed his
conviction. United States v. Smith, 800 Fed. App’x 658, 662 (10th Cir. 2020).
In November 2023, Smith filed a motion pursuant to 18 U.S.C. § 3582(c)(2)
asking the district court to reduce his sentence under the retroactive guideline
changes enacted by the U.S. Sentencing Commission in its Amendment 821. The
Amendment limits the criminal history points given to defendants who commit an
offense while on probation, and Smith argued he was eligible for a two-point
reduction. He asked the district court to reduce his sentence—and apply a
proportional variance—in accordance with his amended guideline range of 262 to
327 months. The district court denied his motion for a sentence reduction, and
subsequently denied his motion for reconsideration.
II. Discussion
We review a district court’s denial of a § 3582(c)(2) motion and its denial of a
motion for reconsideration for abuse of discretion. United States v. Randall, 666
F.3d 1238, 1241 (10th Cir. 2011); United States v. Sharkey, 543 F.3d 1236, 1238
2 Appellate Case: 24-4036 Document: 010111097212 Date Filed: 08/20/2024 Page: 3
(10th Cir. 2008). But “[t]he scope of a district court’s authority in a resentencing
proceeding under § 3582(c)(2) is a question of law that we review de novo.” United
States v. Rhodes, 549 F.3d 833, 837 (10th Cir. 2008).
Section 3582(c)(2) allows a court to reduce a sentence for 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 . . . if such a reduction is
consistent with applicable policy statements issued by the Sentencing Commission.”
18 U.S.C. § 3582. See also Dillon v. United States, 560 U.S. 817, 821–22 (2010)
(“When the Commission makes a Guidelines amendment retroactive, 18 U.S.C.
§ 3582(c)(2) authorizes a district court to reduce an otherwise final sentence that is
based on the amended provision. Any reduction must be consistent with applicable
policy statements issued by the Sentencing Commission.”).
“The Sentencing Commission’s policy statements regarding modifications of
previously imposed sentences are set forth in [U.S.S.G.] § 1B1.10.” Rhodes, 549
F.3d at 841. Section 1B1.10 states that a “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. See also Dillon, 560
U.S. at 822 (“§ 1B1.10(b)(2)(A) forecloses a court acting under § 3582(c)(2) from
reducing a sentence to a term that is less than the minimum of the amended guideline
range.”) (internal quotation marks omitted).
Smith’s 180-month sentence is less than the minimum of the amended guideline
range of 262 to 327 months. Thus, “[b]ecause this policy statement is binding on
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district courts pursuant to § 3582(c)(2), the district court . . . lacked the authority to
impose a modified sentence that fell below the amended guideline range.” Rhodes,
549 F.3d at 841. The only exception to this rule is if the defendant received the original
below-guidelines sentence “pursuant to a government motion to reflect the defendant’s
substantial assistance to authorities.” § 1B1.10(2)(B). This exception does not apply
here. Smith proceeded to trial and received no reduction in his sentence for
substantial assistance to authorities.
Smith advances a few additional arguments. First, he claims the district court
failed to sign the AO247 form. We can quickly dispose of this argument because it
lacks support from the record. Second, he argues the district court failed to consider
the § 3553(a) factors—specifically his post-sentencing conduct—in determining his
eligibility for a reduction.1 Any error here is harmless because even if the court
considered his post-sentencing conduct, it could not have imposed a lower sentence.
We affirm the district court’s denial of Smith’s motion to reduce his sentence
1 “Consistent with 18 U.S.C. § 3582(c)(2), the court shall consider the factors set forth in 18 U.S.C. § 3553(a) in determining: (I) whether a reduction in the defendant’s term of imprisonment is warranted; and (II) the extent of such reduction, but only within the limits described in subsection (b).” § 1B1.10, app. n.1(B)(i).
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