United States v. Grayson

U.S. Court of Appeals for the Tenth Circuit
United States v. Grayson, 587 F. App'x 501 (10th Cir. 2014)

United States v. Grayson

Opinion

ORDER AND JUDGMENT **

PAUL J. KELLY, JR., Circuit Judge.

Defendant-Appellant Eric Grayson appeals from the district court’s dismissal with prejudice of his motion to reduce sentence based upon Amendment 750 to the Sentencing Guidelines. United States v. Grayson, 08-CR-178-F (D.Wyo. June 6, 2014). We previously rejected a similar claim (based upon Amendment 706) because Mr. Grayson’s 15-year sentence was “based on” a Fed.R.Crim.P. 11(c)(1)(C) plea agreement rather than the Sentencing Guidelines. United States v. Grayson, 387 Fed.Appx. 888, 890 (10th Cir. 2010). In this appeal, Mr. Grayson argues that we should reconsider our precedent in United States v. Graham, 704 F.3d 1275 (10th Cir. 2013). In Graham, we construed Freeman v. United States, — U.S. -, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011) as holding that a sentence pursuant to a Rule 11(c)(1)(C) plea agreement is “based on” the plea agreement, not the Sentencing Guidelines, absent language using or employing a specific Guidelines range. 704 F.3d at 1278. Accordingly, we denied the defendant’s 18 U.S.C. § 3582(c)(2) motion for a sentence reduction based on a Guideline amendment. Id. at 1279.

Although Mr. Grayson urges us to follow a contrary interpretation, United States v. Epps, 707 F.3d 337, 351 (D.C.Cir. 2013), absent en banc review or superseding law, one panel of this court cannot overrule another. Kitchen v. Herbert, 755 F.3d 1193, 1233 (10th Cir. 2014) (Kelly, J., concurring in part and dissenting in part). Following Graham, as we must, Mr. Gray-son’s sentence is not one “based on” the Sentencing Guidelines and therefore a sen-' fence reduction pursuant to Amendment 750 and 18 U.S.C. § 3582(c)(2) is unavailable.

AFFIRMED.

**

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.

Reference

Full Case Name
UNITED STATES of America, Plaintiff-Appellee, v. Eric GRAYSON, Defendant-Appellant
Status
Unpublished