from the United States District Court for the Western
District of Oklahoma (D.C. No. 5:10-CR-00079-F-1)
Meredith B. Esser, Assistant Federal Public Defender
(Virginia L. Grady, Federal Public Defender and Dean
Sanderford, Assistant Federal Public Defender, on the
briefs), Denver, Colorado, for Defendant-Appellant.
W. Creager, Assistant United States Attorney (Mark A. Yancey,
United States Attorney, with him on the briefs), Oklahoma
City, Oklahoma, for Plaintiff-Appellee.
TYMKOVICH, Chief Judge, BALDOCK, and HOLMES, Circuit Judges.
BALDOCK, CIRCUIT JUDGE.
2011, Defendant Marconia Green pleaded guilty to three counts
of using a communication facility to facilitate the
acquisition of cocaine powder in violation of 21 U.S.C.
§ 843(b). The district court sentenced him to 130
months' imprisonment. Three years after Defendant's
sentencing, the U.S. Sentencing Commission promulgated
Amendment 782, which reduced the base offense levels assigned
to certain drug offenses by two levels. Invoking this
amendment, Defendant filed a motion to reduce his sentence
under 18 U.S.C § 3582(c)(2). The district court denied
the motion, and this Court affirmed. Over a year later,
Defendant filed another motion to reduce his sentence, again
citing Amendment 782. The district court also denied this
second motion. Defendant now appeals the denial, arguing the
district court abused its discretion in not considering all
the facts and circumstances of his case. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
jury initially indicted Defendant on seven counts of
possessing cocaine powder and cocaine base with intent to
distribute and three counts of using a communication facility
to facilitate the acquisition of cocaine powder. Pursuant to
a plea agreement, the Government dismissed the possession
charges, and Defendant pleaded guilty to the three
communication-facility counts. At Defendant's sentencing
hearing, the district court held Defendant's guideline
range was 92 to 115 months' imprisonment. Notably, this
guideline range is less than what the presentence
investigation report recommended (110 to 137 months'
imprisonment) and also less than what the guideline range
would have been absent the plea agreement (188 to 235
district court, however, imposed an upward-variant sentence
of 130 months' imprisonment. Before imposing this
sentence, the court surveyed Defendant's extensive
[D]efendant . . . has a criminal career going back about 30
years that starts with a manslaughter conviction, proceeds to
convictions for distribution of cocaine base-and here I'm
ignoring ones that are less serious than that-distribution of
cocaine base, violation of a protective order, another
distribution of cocaine base, and then a third distribution
of crack cocaine in 2004 . . . . By my conservative count,
I'm the 18th judge this defendant has been in front of
presumably to say that he will change his ways.
Supp. ROA Vol. I at 25. Defendant then "ask[ed] the
Court to be lenient . . . with [his] sentence, "
explaining that he had been in drug rehabilitation for
twenty-two months and realized he needed to change.
Id. at 32-34. He also stated, "I mean, come on,
I don't think what I done [sic] was really all that bad
for me to have to go spend another 15 years in prison."
Id. at 34. The court responded, "[T]hat request
[for lenience] rings hollow with the Court."
Id. at 36. After noting Defendant's lack of
remorse for "the victims whose lives [he had] ruined by
dispensing this horrible substance" and explaining
"the need to impose a just punishment, the need for . .
. deterrence, and the need for incapacitation, " the
court imposed the upward-variant sentence. Id. at
36-38. Both Defendant's direct appeal and collateral
attack on his sentence failed. United States v.
Green, 504 Fed.Appx. 771 (10th Cir. 2012) (unpublished);
United States v. Green, 548 Fed.Appx. 557 (10th Cir.
years after Defendant's sentencing, the U.S. Sentencing
Commission amended the sentencing guidelines by reducing the
offense level of many drug offenses by two levels. U.S.
Sentencing Guidelines Manual app. C supp., amend. 782 (U.S.
Sentencing Comm'n 2016). The Commission made this
amendment, Amendment 782, retroactive. Id., amend.
788. Citing Amendment 782, Defendant filed a pro se motion
for a reduced sentence under 18 U.S.C. § 3582(c)(2). He
argued he was eligible for a sentence reduction and that the
court should grant such reduction because of the progress he
had made while in prison, as evidenced by a transcript
listing courses he had completed. The district court denied
the motion, and this Court affirmed. United States v.
Green, 625 Fed.Appx. 901 (10th Cir. 2015) (unpublished).
months later, Defendant filed another pro se motion for a
reduced sentence under § 3582(c)(2). He again argued
Amendment 782 rendered him eligible for such a reduction and
that the court should grant a reduction because of the
courses he had completed in prison. The only difference
between his first and second motions was that, in his second
motion, Defendant included more courses on his transcript and
attached two new certificates acknowledging he had taken
certain courses. The district court held that while Defendant
was eligible for a reduced sentence under Amendment 782, this
amendment did not mandate relief. The court then explained
that his transcript of courses taken and certificates did not
make a reduction appropriate. Thus, the district court denied
proceeding pro se, Defendant filed a notice of appeal to this
Court, the subject of which is before us now. In his opening
brief, Defendant argued the district court abused its
discretion by not considering all the facts and circumstances
of his case, including Defendant's clean disciplinary
record while incarcerated. The Government responded that the
district court lacked jurisdiction to consider
Defendant's second motion for a reduced sentence under
Amendment 782 or, in the alternative, the court properly
denied the motion on the merits. This Court appointed counsel
to represent Defendant in responding to the Government's
arguments. In his supplemental briefing, Defendant argues the
district court did indeed have jurisdiction. He also argues
this Court should ...