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  • United States v. Fykes, 10th Cir. (1998)

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's denial of Michael Fykes' motion to modify his prison term. A jury had previously convicted Fykes of conspiracy to distribute and possession with intent to distribute cocaine base. Fykes argued that his sentence should be modified because the district court did not have evidence that the cocaine base met the crack cocaine definition in a later sentencing guidelines amendment. However, the Tenth Circuit previously held in another case that this amendment could not be applied retroactively. As Fykes was sentenced before the effective date of the amendment, it did not provide a basis to modify his sentence.

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    Filed: 1998-07-06 Precedential Status: Non-Precedential Docket: 98-1103

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's denial of Michael Fykes' motion to modify his prison term. A jury had previously convicted Fykes of conspiracy to distribute and possession with intent to distribute cocaine base. Fykes argued that his sentence should be modified because the district court did not have evidence that the cocaine base met the crack cocaine definition in a later sentencing guidelines amendment. However, the Tenth Circuit previously held in another case that this amendment could not be applied retroactively. As Fykes was sentenced before the effective date of the amendment, it did not provide a basis to modify his sentence.

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    5 views2 pages

    United States v. Fykes, 10th Cir. (1998)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit affirmed the district court's denial of Michael Fykes' motion to modify his prison term. A jury had previously convicted Fykes of conspiracy to distribute and possession with intent to distribute cocaine base. Fykes argued that his sentence should be modified because the district court did not have evidence that the cocaine base met the crack cocaine definition in a later sentencing guidelines amendment. However, the Tenth Circuit previously held in another case that this amendment could not be applied retroactively. As Fykes was sentenced before the effective date of the amendment, it did not provide a basis to modify his sentence.

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    F I L E D

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    JUL 6 1998

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,

    No. 98-1103
    (D.C. No. 92-CR-149-M)
    (District of Colorado)

    v.
    MICHAEL FYKES,
    Defendant-Appellant.

    ORDER AND JUDGMENT

    Before PORFILIO , KELLY , and HENRY , Circuit Judges.


    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal.

    See Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. The case is

    therefore ordered submitted without oral argument.


    Michael Fykes appeals the district courts denial of his motion to modify
    his term of imprisonment pursuant to 18 U.S.C. 3582(c). We affirm because his

    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    *

    argument for modification is foreclosed by our decision in

    United States v.

    Kissick , 69 F.3d 1048 (10th Cir. 1995).


    A jury convicted Mr. Fykes of conspiracy to distribute cocaine base and
    possession with intent to distribute cocaine base in violation of 21 U.S.C.
    841(a)(1) and 846. On December 4, 1992, the district court sentenced him to 100
    months in prison. Mr. Fykes asks that we modify his sentence because the district
    court did not have before it evidence that showed the cocaine base fit the
    definition of crack in U.S.S.G. 2D1.1 as amended by the Sentencing
    Commissions Amendment 487. In

    Kissick , we held that we would not apply

    Amendment 487 retroactively because it is not listed in U.S.S.G. 1B1.10 and is


    substantive, rather than clarifying.

    See Kissick , 69 F.3d at 1052-53. The district

    court sentenced Mr. Fykes in December 1992 and Amendment 487, which

    Kissick

    held non-retroactive, did not become effective until almost a year later, in
    November 1993. Therefore, Mr. Fykes may not rely on Amendment 487s
    definition of crack as a basis for modification of his sentence. We affirm the
    denial of the motion to modify. The mandate shall issue forthwith.
    Entered for the Court,

    Robert H. Henry
    Circuit Judge

    -2-

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