F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 5 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 02-2066
(D.C. Nos. CR-01-415-LH
FERNANDO OLVERA-GARCIA, & CIV-02-130-LH/DJS)
also known as Alberto Gonzalez, (D. New Mexico)
Defendant - Appellant.
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 02-2079
v. (D.C. Nos. CR-01-665-JC
& CIV-02-165-JC/LFG)
FERNANDO TORRES-MARQUEZ, (D. New Mexico)
Defendant - Appellant.
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 02-2114
(D.C. Nos. CR-01-421-LH
v. & CIV-02-256-LH/KBM)
(D. New Mexico)
HUMBERTO URIBE-RAMIREZ,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR , EBEL , and O’BRIEN , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). These cases
are therefore ordered submitted without oral argument.
In these three cases, defendants appeal from the denial of their motions to
modify their criminal sentences under 18 U.S.C. § 3582(c)(2) based on a
subsequent change in the sentencing guidelines. The district court denied the
motions on the merits. Because each appellant was sentenced in accordance with
a plea agreement specifying an offense level, the district court should have
dismissed without reaching the merits.
Each of these defendants pleaded guilty to reentering the United States
illegally as a deported alien previously convicted of an aggravated felony, in
violation of 8 U.S.C. § 1326(a)(1), (2), and (b)(2). At the time they were
sentenced, USSG § 2L1.2(b)(1)(A) called for a sixteen-level increase for a
*
This order and judgment is not binding precedent, except under the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.
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defendant previously convicted of an aggravated felony. Effective November 1,
2001, however, the Sentencing Commission promulgated Guidelines
Amendment 632, which amended § 2L1.2(b)’s aggravated-felony enhancement to
provide for an increase of eight to sixteen levels according to the seriousness of
the earlier aggravated felony. See USSG Supp. to App. C at 224-25 (Nov. 1,
2001); USSG § 2L1.2(b) (Nov. 1, 2001). In response, each of these defendants
filed a pro se motion to modify his sentence under 18 U.S.C. § 3582(c)(2),
arguing that Amendment 632 had lowered the authorized term of imprisonment.
The district court denied each motion on the merits, and each defendant appealed.
We review the district court’s determinations de novo. See United States v.
Smartt , 129 F.3d 539, 540 (10th Cir. 1997).
No. 02-2066, United States v. Fernando Olvera-Garcia
The presentence report calculated defendant’s criminal history category at
IV and his offense level at twenty-one, which included the sixteen-level increase
under § 2L1.2(b). Defendant entered into a plea agreement pursuant to
Fed. R. Crim. P. 11(e)(1)(C), however, under which he agreed to be sentenced at
an offense level of seventeen. The sentencing court accepted the plea agreement
and sentenced defendant within the stipulated range.
When a defendant enters into a valid plea agreement pursuant to
Fed. R. Crim. P. 11(e)(1)(C), “he may not seek a reduction in his sentence via
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18 U.S.C. § 3582(c)(2). United States v. Trujeque , 100 F.3d 869, 869 (10th Cir.
1996). Defendant has neither argued nor demonstrated that his Rule 11(e)(1)(C)
plea agreement is invalid. As a result, the district court should have dismissed
defendant’s § 3582(c)(2) motion without addressing the merits of his argument
regarding Amendment 632.
No. 02-2079, United States v. Fernando Torres-Marquez
The presentence report calculated defendant’s criminal history category at
III and his offense level at twenty-one, which included the sixteen-level increase
under § 2L1.2(b). Defendant entered into a Rule 11(e)(1)(C) plea agreement,
however, under which he agreed to be sentenced at an offense level of seventeen.
The sentencing court accepted the plea agreement and sentenced defendant within
the stipulated range.
As in No. 02-2066, this defendant has neither argued nor demonstrated that
his Rule 11(e)(1)(C) plea agreement is invalid. Therefore, the district court
should have dismissed defendant’s § 3582(c)(2) motion without addressing its
merits. See Trujeque , 100 F.3d at 869.
No. 02-2114, United States v. Humberto Uribe-Ramirez
The presentence report calculated defendant’s criminal history category at
IV and his offense level at twenty-one, which included the sixteen-level increase
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under § 2L1.2(b). Defendant entered into a Rule 11(e)(1)(C) plea agreement,
however, under which he agreed to be sentenced at an offense level of seventeen.
The sentencing court accepted the plea agreement and sentenced defendant within
the stipulated range.
As in Nos. 02-2066 and 02-2079, this defendant has neither argued nor
demonstrated that his Rule 11(e)(1)(C) plea agreement is invalid. As a result, the
district court should have dismissed defendant’s § 3582(c)(2) motion without
addressing its merits. See Trujeque , 100 F.3d at 869.
Conclusion
In each of these cases, we VACATE the district court’s merits decision and
REMAND with instructions to dismiss defendant’s motion. The mandate shall
issue forthwith.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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