United States v. Bell, 10th Cir. (2016)

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

_________________________________
UNITED STATES OF AMERICA,
FILED
United States Court of Appeals
Tenth Circuit
March 25, 2016

Elisabeth A. Shumaker
Clerk of Court
Plaintiff - Appellee,
v.
DEMONE RASHEE BELL, a/k/a D,
No. 15-5118
(D.C. No. 4:10-CR-00129-GKF-1)
(N.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, McKAY, and MORITZ, Circuit Judges.
_________________________________
Appearing pro se, Demone Rashee Bell appeals the district courts denial of
his motion to reduce his sentence under 18 U.S.C. 3582(c)(2).1 Because Bell is
ineligible for a sentence reduction, we affirm.
Bell was convicted in 2010 of various counts arising out of a conspiracy to
manufacture and distribute methamphetamine. A jury found the conspiracy involved
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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
1
Because Bell appears pro se, we liberally construe his filings. Gallagher v.
Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009). But its not our role to act as his
advocate. Id.
2.4 kg of methamphetamine, which resulted in a base offense level of 34. After

applying several enhancements, the district court concluded Bell had a total offense
level of 42 and a criminal history category VI, producing a Guidelines range of 360
months to life in prison. But the court granted in part Bells motion for a downward
variance to a non-Guidelines sentence, varying downward seven levels to a total
offense level of 35 and a Guidelines range of 292 to 365 months. The court sentenced
Bell to 300 months in prison.
The Sentencing Commission subsequently issued Amendment 782, which
lowered by two levels most of the base offense levels provided in the Guidelines
Drug Quantity Table. See U.S.S.G. app. C, amend. 782. Citing Amendment 782, Bell
filed a motion for a sentence reduction under 3582(c)(2), which authorizes a district
court to reduce a defendants sentence if it was based on a sentencing range that has
subsequently been lowered by the Sentencing Commission. Bell argued he was
eligible for a reduced sentence because Amendment 782 reduced the Guidelines
range applicable in this case. R. at 58.
The district court disagreed. It explained that although Amendment 782
lowered Bells total offense level from 42 to 40, the resulting Guidelines range
remained 360 months to life. Noting that it was not permitted to impose a sentence
that is less than the range produced by the retroactive amendment, the district court
concluded Bell was ineligible for a sentence reduction because his original 300month sentence is below the minimum of the applicable post-Amendment Guidelines
range. Id. at 64 (citing U.S.S.G. 1B1.10(b)(2)(A)).
2
Bell appeals,2 insisting Amendment 782 reduced his applicable Guidelines

range. He explains that because his total offense level is now 40, leaving all other
application decisions made at [the time of his sentencing] intact, specifically,
removing seven levels of offense characteristics as a downward variance he would
have received a sentence of 235 months (Level 33, Category VI). Aplt. Br. 5.
But Bell is mistaken that applying the seven-level variance he received at
sentencing would reduce the applicable Guidelines range. For purposes of a motion
under 3582(c)(2), the applicable Guidelines range is the range that corresponds to
the offense level and criminal history category determined pursuant to 1B1.1(a),
which is determined before consideration of . . . any variance. U.S.S.G. 1B1.10
cmt. n.1(A) (emphasis added); see also United States v. Corber, 596 F.3d 763, 768
(10th Cir. 2010) (explaining that the applicable guideline range and the range upon
which a sentence is based is, as a matter of law, the range produced under the
guidelines sentencing table after a correct determination of the defendants total
offense level and criminal history category but prior to any discretionary variances
(emphasis added)).
Based on the district courts original pre-variance determination of Bells total
offense level (i.e., 42) and his criminal history category (i.e., VI), Bells applicable
Guidelines range at sentencing was 360 months to life. Supp. R., vol. II, at 29l; see
2
Bell filed his notice of appeal more than fourteen days after the district court
denied his motion. Because the government doesnt challenge his appeal as untimely,
we exercise our discretion to hear the appeal. See United States v. Garduno, 506 F.3d
1287, 1291 (10th Cir. 2007) (explaining timeliness under Fed. R. App. P. 4(b)(1)(A)
may be forfeited if not properly raised by the government).
3
U.S.S.G. ch. 5, pt. A. Bell is correct that Amendment 782 reduces his total offense
level from 42 to 40. See U.S.S.G. 2D1.1(c)(4). But when that new offense level is
coupled with Bells criminal history category of VI, his applicable Guidelines range
for purposes of 3582(c)(2) remains 360 months to life. See U.S.S.G. ch. 5, pt. A;
Corber, 596 F.3d at 768 (explaining applicable Guidelines range is range calculated
before variance). This is fatal to Bells motion, because a court isnt authorized to
reduce a defendants sentence under 3582(c)(2) if the applicable amendment does
not have the effect of lowering the defendants applicable guideline range. U.S.S.G.
1B1.10(a)(2)(B).3
Accordingly, we affirm the district courts denial of Bells 3582(c)(2)
motion. We also deny Bells motion to proceed in forma pauperis.
Entered for the Court
Nancy L. Moritz
Circuit Judge
Moreover, Bells original 300-month sentence is below the minimum of the

applicable Guidelines range produced by Amendment 782. The district court
therefore correctly concluded it was prohibited from reducing his sentence any
further. See U.S.S.G. 1B1.10(b)(2)(A) (providing that, absent a narrow exception
not applicable here, a court shall not reduce the defendants term of imprisonment
under 3582(c)(2) to a term that is less than the minimum of the amended
guideline range).
4

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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

March 25, 2016

2.4 kg of methamphetamine, which resulted in a base offense level of 34. After

Bell appeals,2 insisting Amendment 782 reduced his applicable Guidelines

Moreover, Bells original 300-month sentence is below the minimum of the

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