APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO, (D.C. NO. 1:90-CR-00285-MV).
The opinion of the court was delivered by: McCONNELL, Circuit Judge.
Before HENRY, McKAY and McCONNELL, Circuit Judges.
Enrique Pedraza is serving a sentence for conspiracy to possess with the intent to distribute more than five kilograms of cocaine and for possession with intent to distribute more than five kilograms of cocaine. In 2006, Mr. Pedraza filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) on the ground that the Sentencing Commission had made retroactive an amendment that reduced the sentence for his offense. He requested, however, that the court not only substitute the amended guideline range for the previous guideline range, but also that it reduce his sentence even further on the basis of the 18 U.S.C. § 3553(a) factors. The district court reduced Mr. Pedraza's sentence to the bottom of the amended guidelines range but declined his request for a further reduction, believing that it lacked the discretion to do so. Mr. Pedraza now appeals the resentencing on the grounds that United States v. Booker's mandate that courts treat the sentencing guidelines as advisory applies to resentencing under § 3582(c)(2) just as it applies to original sentencing.*fn1 We disagree and affirm the order of the district court.
Mr. Pedraza's current incarceration resulted from his involvement in an elaborate scheme to smuggle over 700 kilograms of cocaine from Columbia to the United States, as we previously detailed in United States v. Pedraza, 27 F.3d 1515, 1517--20 (10th Cir. 1994). On November 15, 1991, a jury convicted Mr. Pedraza of one count of conspiracy to possess with intent to distribute more than five kilograms of cocaine and one count of possession with intent to distribute more than five kilograms of cocaine. On April 23, 1992, the district court calculated Mr. Pedraza's sentence. Under then-current sentencing guidelines, the large quantity of drugs triggered a base offense level of 40, which was increased by two on account of Mr. Pedraza's leadership role in the conspiracy. When combined with his criminal history category of I, the guidelines prescribed a sentencing range of 360 months to life. The court sentenced Mr. Pedraza to 384 months' imprisonment followed by five years' supervised release. On appeal, we affirmed the conviction but remanded for resentencing due to the district court's failure to comply with Fed. R. Crim. P. 32(c)(3)(D)'s requirement to make written findings. Pedraza, 27 F.3d at 1530--31. On remand, the district court again sentenced Mr. Pedraza to 384 months' imprisonment followed by five years' supervised release.
On November 1, 1994, the Sentencing Commission adopted Amendment 505, which reduced the upper level for all drug sentences to 38. U.S.S.G. App. C, Amendment 505. A year later the Commission made the new limit retroactive by enacting Amendment 536. U.S.S.G. App. C, Amendment 536. Under the amended guidelines, Mr. Pedraza's offense level would have been 38 rather than 40. Combined with the two-level increase and criminal history category of I, this would have resulted in a reduced guideline range of 292 to 365 months.
All of this occurred before United States v. Booker had transformed the guidelines from a mandatory regime to an advisory one. 543 U.S. 220 (2005). When Mr. Pedraza filed a motion for resentencing under § 3582(c)(2) on September 29, 2006, however, the courts were operating in a post-Booker world. That change prompted Mr. Pedraza to request not only a reduction in sentence to the revised guideline range of 292 to 365 months, but also a further reduction to time served. That further reduction would amount to a downward variance of two offense levels. At the resentencing hearing, the judge reduced Mr. Pedraza's sentence to 292 months, the bottom of the amended guideline range. The judge did not, however, grant the additional variance. She noted that although Booker would give the court discretion to grant that variance in an initial sentencing, Booker did not extend to a § 3582(c)(2) resentencing. The judge urged Mr. Pedraza to appeal, however, telling him "I would love to be wrong about this." Tr. Mot. to Reduce Sent. 41.
A. Booker's Applicability to Resentencing Proceedings
The outcome of Mr. Pedraza's appeal was considerably less certain at the time the parties submitted briefs and held oral arguments. Since that time, however, we have decided United States v. Rhodes, 2008 WL 5102247 (10th Cir. Dec. 5, 2008). Like Mr. Pedraza, Mr. Rhodes disputed the extent of the resentencing judge's authority to reduce his sentence. He argued that after Booker, the sentencing judge had the authority not only to reduce his sentence to the amended guidelines range but to reduce it even further if the § 3553(a) factors so warranted a variance. We rejected this position. Although Booker excised from the statute § 3553(b)(1), which had mandated that judges impose within-guidelines sentences in original sentencings, we noted that Booker had not touched § 3582(c)(2), which covers sentence modification proceedings. Id. at *6. A resentencing proceeding is an entirely different animal that does not implicate the Sixth Amendment concerns that drove the Booker remedy. After our holding in Rhodes, therefore, Mr. Pedraza's argument that Booker and the Sixth Amendment mandate discretion to impose a below-guidelines sentence at resentencing has been settled: they do not.
B. Statutory Grant of Resentencing Discretion
Booker's inapplicability does not end matters. A judge's resentencing authority is a creation of statute, and the fact that the Sixth Amendment does not mandate discretion to impose below-guidelines sentences during resentencing does not preclude a statute from doing so. The statute in question is § 3582(c)(2), which affords a narrow exception to the usual rule of finality of judgments:
[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), 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 ...