United States v. Graham

Filing 920100907

Opinion

U n i t e d States Court of Appeals T e n t h Circuit

FILED

S e p t e m b e r 7, 2010
U N I T E D STATES COURT OF APPEALSl i s a b e t h A. Shumaker E T E N T H CIRCUIT __________________________ U N I T E D STATES OF AMERICA, Plaintiff-Appellee, v. G R E G O R Y E. GRAHAM, Defendant-Appellant. ____________________________ O R D E R AND JUDGMENT * B e f o r e BARRETT, ANDERSON, and BRORBY, Circuit Judges. N o . 10-8006 ( D . C t . No. 2:05-CR-00078-ABJ-2) ( D . Wyo.)
C l e r k of Court

A f t e r examining the briefs and appellate record, this panel has determined u n a n i mo u s l y that oral argument would not materially assist in the determination o f this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t h e r e f o r e ordered submitted without oral argument.

A p p e l l a n t Gregory E. Graham, a federal inmate, appeals the district court's d e n i a l of his "Motion To Recall Mandate Order on Court[']s Denial." We This order and judgment is not binding precedent except under the d o c t r i n e s of law of the case, res judicata and collateral estoppel. It may be cited, h o w e v e r , for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th C i r . R. 32.1.
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e x e r c i s e jurisdiction under 28 U.S.C. § 1291 and grant Mr. Graham's motion to p r o c e e d in forma pauperis, grant the government's motion to dismiss, and dismiss M r . Graham's appeal.

I . Factual and Procedural Background O n August 23, 2005, Mr. Graham pled guilty to the offense of distribution o f 7.1 grams of cocaine base (crack cocaine). United States v. Graham, 466 F.3d 1 2 3 4 , 1235-36 (10 th Cir. 2006). The district court sentenced him to twenty-five y e a r s imprisonment based on his and the government's Rule 11 plea agreement in w h i c h he waived his right to appeal, stipulated to distribution of 7.1 grams of c r a c k cocaine, and stipulated to a twenty-five-year sentence. 1 Id. at 1236-38. We a f f i r me d Mr. Graham's conviction and sentence on direct appeal. Id. at 1241.

T h e r e a f t e r , Mr. Graham unsuccessfully filed a motion under 18 U.S.C. § 3582(c), requesting a reduction of his sentence in conjunction with Amendment 7 0 6 which modified the Drug Quantity Table in United States Sentencing G u i d e l i n e s ("Guidelines" or "U.S.S.G.") § 2D1.1(c) downward two levels for

Federal Rule of Criminal Procedure 11(c)(1)(C) permits the government a n d defendant to discuss and reach a plea agreement, including an agreement a s p e c i f i c sentence is appropriate, and states that once the plea agreement is a c c e p t e d by the district court, the specified sentence is binding.
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c r a c k cocaine. 2 United States v. Graham, 304 F.App'x 686, 687 (10 th Cir. 2008) ( u n p u b l i s h e d op.). The district court denied Mr. Graham's § 3582(c)(2) motion o n grounds he did not qualify for a sentence reduction because the amount of c r a c k cocaine attributable to him rendered him ineligible for relief. Id. We a f f i r me d on other grounds, explaining that because Mr. Graham agreed to a b i n d i n g sentence of twenty-five years, his sentence was not "based on a s e n t e n c i n g range that has subsequently been lowered by the Sentencing C o mmi s s i o n , " as required under § 3582(c)(2) 3 for a sentence reduction. Id. at 6 8 8 . Because the district court lacked jurisdiction to consider Mr. Graham's § 3582(c)(2) motion for a reduction of sentence, we remanded the matter to the d i s t r i c t court with instructions to dismiss the motion for lack of jurisdiction. Id. On January 14, 2009, the district court issued an "Order on Mandate," dismissing M r . Graham's § 3582 motion for lack of jurisdiction.

See U.S.S.G. Supp. to App. C, Amend. 706 (Reason for Amend.); A me n d s . 712 and 713 (Mar. 3, 2008 Supp.); § 1B1.10(a)(2).
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Section 3582 states:

[ I ]n the case of a defendant who has been sentenced to a term of i mp r i s o n me n t based on a sentencing range that has subsequently b e e n lowered by the Sentencing Commission pursuant to 28 U.S.C. [ § ] 994(o), ... the court may reduce the term of imprisonment, after c o n s i d e r i n g the factors set forth in section 3553(a) to the extent that t h e y are applicable, if such a reduction is consistent with applicable p o l i c y statements issued by the Sentencing Commission. 1 8 U.S.C. § 3582(c)(2) (emphasis added).
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M r . Graham filed the instant "Motion to Recall Mandate Order on Court[']s D e n i a l " with the district court, asking it to recall our mandate and reconsider the i s s u e presented for a reduction of sentence. 4 Thereafter, the district court issued a n order denying Mr. Graham's motion, explaining it did not have jurisdiction to r e c a l l a mandate of this court. It also stated it did not have jurisdiction to e n t e r t a i n a motion to reduce his sentence, as explained by this court in his prior a p p e a l . Mr. Graham now appeals the district court's order.

II. Discussion O n appeal, Mr. Graham renews the same arguments previously made to s e e k a reduction of his sentence under Amendment 706 to the Guidelines. He a l s o reasserts issues expressly addressed by this court in his direct appeal, i n c l u d i n g the knowingness and voluntariness of his plea; ineffective assistance of c o u n s e l ; and the sentencing requirements under Booker. See Graham, 466 F.3d at 1 2 3 9 - 4 1 . Mr. Graham also claims the government misrepresented or misc h a r a c t e r i z e d the evidence and facts concerning his sentence and that his sentence v i o l a t e s the Fifth Amendment. In response, the government filed a motion to d i s mi s s Mr. Graham's appeal based on the district court's lack of jurisdiction to

Mr. Graham also filed a second motion under 18 U.S.C. § 3582 for a s e n t e n c e reduction on the same grounds; i.e., Amendment 706 lowered the G u i d e l i n e s range and should be applied to him. The district court denied his mo t i o n for lack of jurisdiction, which is not part of this appeal.
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g r a n t the relief requested for recall of this court's mandate.

As previously discussed, we determined Mr. Graham's sentence did not q u a l i f y for a sentence reduction under § 3582(c)(2) because he and the g o v e r n me n t stipulated to a sentence of twenty-five years under Federal Rule of C r i mi n a l Procedure 11(c)(1)(C). See Graham, 304 F.App'x at 687. Not only did t h e district court lack jurisdiction to consider Mr. Graham's prior § 3582 motion, b u t , in the instant case, it correctly determined it did not have jurisdiction to " r e c a l l " a mandate of this court or otherwise provide Mr. Graham the relief r e q u e s t e d . It is a fundamental or rudimentary principle of our judicial system that o n c e an appellate court issues a mandate to a district court to dismiss an action f o r lack of jurisdiction, the district court does not have jurisdiction to recall or o t h e r w i s e void our mandate or to reconsider the merits of an action. To argue o t h e r w i s e is simply frivolous.

Even if we reached the merits of Mr. Graham's other arguments on appeal, t h e y are equally frivolous. None of those arguments address the district court's j u r i s d i c t i o n ; provide grounds for recall of our mandate; or are appropriate where t h i s court has definitively addressed them on direct appeal, including his a r g u me n t s concerning the knowingness and voluntariness of his plea, ineffective a s s i s t a n c e of counsel, and the sentencing requirements under Booker. To the
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e x t e n t Mr. Graham is arguing Booker should be applied in his request for a r e d u c t i o n of his sentence, we have held Booker does not apply to sentence mo d i f i c a t i o n proceedings conducted under § 3582(c)(2). United States v. Rhodes, 5 4 9 F.3d 833, 840 (10 th Cir. 2008), cert. denied, 129 S. Ct. 2052 (2009).

F i n a l l y , it is clear that by filing a motion with the district court to recall our ma n d a t e , reconsider his § 3582 motion, and rule on issues previously addressed b y this court in his direct appeal, Mr. Graham is attempting to obtain favorable r e s u l t s on issues previously deemed meritless or over which the district court l a c k e d jurisdiction. Similarly, Mr. Graham has not explained why he failed to r a i s e the issues of the government's alleged misrepresentations and his sentence's v i o l a t i o n of the Fifth Amendment in his direct appeal. Instead, the instant appeal o n all of these issues is clearly an abuse of the judicial process, including the c a u s e of unnecessary expenditures of judicial resources. We have held "[t]he r i g h t of access to the courts is neither absolute nor unconditional, and there is no c o n s t i t u t i o n a l right of access to the courts to prosecute an action that is frivolous o r malicious." Winslow v. Hunter (In re Winslow), 17 F.3d 314, 315 (10 th Cir. 1 9 9 4 ) (per curiam) (internal quotation marks and alteration omitted). We have f u r t h e r held that where a party has "engaged in a pattern of litigation activity w h i c h is manifestly abusive, restrictions are appropriate." Id. (internal quotation ma r k s omitted).
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A c c o r d i n g l y , we caution Mr. Graham future post-conviction filings on f r i v o l o u s issues may result in summary disposition without any discussion. While w e grant Mr. Graham's motion for leave to proceed in forma pauperis in the i n s t a n t action, we further caution him we may limit permission in the future to p r o c e e d in forma pauperis, regardless of his financial ability to pay such costs a n d fees, should he continue to file frivolous pleadings. 5 The fact Mr. Graham is a pro se litigant does not prohibit the court from such summary disposition and l i mi t a t i o n s on frivolous or abusive filings. See Haworth v. Royal, 347 F.3d 1189, 1 1 9 2 (10 th Cir. 2003).

I I I . Conclusion F o r the foregoing reasons, we GRANT the government's motion to dismiss a n d thereby DISMISS Mr. Graham's appeal. We further GRANT Mr. Graham's mo t i o n to proceed in forma pauperis. E n t e r e d by the Court: W A D E BRORBY U n i t e d States Circuit Judge

See In re McDonald, 489 U.S. 180, 183-85 (1989) (limiting petitioner f r o m proceeding in forma pauperis in future petitions for extraordinary writs b a s e d on petitioner's abuse of judicial resources); Reneer v. Sewell, 975 F.2d 258, 2 6 0 (6 th Cir. 1992) (permitting "such prospective orders where a plaintiff has d e mo n s t r a t e d a history of unsubstantial and vexatious litigation [amounting to] an a b u s e of the permission granted to him to proceed as a pauper in good faith under 2 8 U.S.C. § 1915(d)").
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