(D.C. No. 1:99-CR-00300-MSK-1) (D. Colo.)
Before BRISCOE, Chief Judge, ANDERSON and BALDOCK, Circuit Judges.
ORDER AND JUDGMENT [*]
Mary Beck Briscoe Chief Judge.
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, submitted without oral argument.
Defendant Manuel Guillermo Carrillo appeals from the district court's order denying his motion for a reduction of his sentence of imprisonment pursuant to 18 U.S.C. § 3582(c)(2). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Carrillo was convicted more than a decade ago on charges related to the distribution of controlled substances, including crack cocaine. See United States v. Hinojosa Gonzalez, 68 F.App'x 918, 921 (10th Cir. 2003) (unpublished). At sentencing, the district court calculated the sentencing range based on the drugs actually seized and purchased during the investigation into Carrillo's drug trafficking activities: 1778.45 grams of methamphetamine, 315.5 grams of cocaine, and 51.55 grams of crack cocaine. ROA Vol. I at 19. The district court calculated a base offense level of 34 based on the quantities of drugs involved. Pursuant to other provisions of the Sentencing Guidelines, that was increased six levels for a total offense level of 40.
Combined with Carrillo's criminal history category of VI, this resulted in a sentencing range of 360 months to life. Id. Carrillo was sentenced to 720 months imprisonment. Id. at 20. We affirmed this conviction and sentence in Hinojosa Gonzalez. And we later denied Carrillo's request for a certificate of appealability to challenge the district court's denial of his petition for habeas corpus. See United States v. Carrillo, 161 F.App'x 790 (10th Cir. 2006) (unpublished).
In 2008, Carrillo, acting pro se,  filed a motion seeking to reduce his sentence of imprisonment pursuant to 18 U.S.C. § 3582(c)(2). See ROA Vol. I at 24. Carrillo pointed to an amendment to the Sentencing Guidelines that reduced the severity of penalties for crimes involving crack cocaine. The government argued that Carrillo was not entitled to relief because "notwithstanding the guideline amendment, the amendment does not have the effect of lowering the defendant's guideline range." Id. at 55. The district court denied Carrillo's motion following a hearing. We dismissed as untimely Carrillo's appeal of the district court's decision. See United States v. Carrillo, No. 09-1007 (10th Cir. March 5, 2009).
In 2012, Carrillo, again acting pro se, filed another motion seeking a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2). See ROA Vol. I at 7. He pointed to more recent amendments to the Sentencing Guidelines that had again reduced the severity of penalties for offenses involving crack cocaine. He also alleged various constitutional violations connected to his conviction and sentencing.
The government again argued that the sentencing range would not change even considering the amendments. Id. at 21. Although the Sentencing Guidelines had been amended since Carrillo filed his 2008 motion, the government did not provide the district court with a new calculation of the appropriate sentencing range—instead, it simply sought to incorporate by reference the facts from its responses to Carrillo's 2008 motion. Id. at 20. The Probation Office also filed an addendum to its presentence report in which it represented that the sentencing range remained the same under the newly amended Sentencing Guidelines. See ROA Vol. II at 6-7.
Without holding a hearing, the district court issued a docket text order denying Carrillo's motion. The order said:
Most of the arguments raised in the instant motion are either: (i) not properly cognizable in [a] motion under § 3582 (e.g. arguments that his convictions should be vacated or that "Pre-Booker" sentencing procedures were unlawful, etc.), and not cognizable under 28 U.S.C. § 2255 without Mr. Carrillo first obtaining leave from the 10th Circuit to assert a successive § 2255 petition; or (ii) arguments substantively identical to those raised by Mr. Carrillo in a prior § 3582 motion that the Court denied on its merits. Although Congress has since passed the Fair Sentencing Act of 2010 (P.L. 111–220) and the Sentencing Guidelines have been amended accordingly, that change does not materially alter the Guideline calculation applicable to Mr. Carrillo; even under the amended Guidelines, Mr. Carrillo's advisory Guideline range is identical to the range he faced at the time of initial sentencing. ...