FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 28, 2016
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-5100
(D.C. No. 4:00-CR-00033-TCK-1)
JOHN THOMAS FISHER, (N.D. Okla.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
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Defendant John Fisher moved for a reduced sentence under 18 U.S.C.
§ 3582(c)(2). The district court denied the motion and Defendant appeals. We have
jurisdiction under 28 U.S.C. § 1291. We agree with the district court’s reasoning but
vacate the order denying the motion and remand for entry of an order dismissing the
motion for lack of jurisdiction.
On September 20, 2000, a jury convicted Defendant on five counts of federal drug
and weapons charges. One count carried a mandatory 10-year sentence to be served
*
After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under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.
consecutively to his sentence on the other counts. The presentence report (PSR) prepared
by the probation office calculated a provisional offense level of 24 for the other
convictions. But because of prior felony convictions Defendant qualified as a career
offender and received an adjusted offense level of 32, leading to a guideline sentencing
range of 210–262 months’ imprisonment for the four convictions. The district court
adopted the PSR and sentenced Defendant to 330 months’ imprisonment, the bottom of
the combined guideline range.
The Sentencing Commission later promulgated Amendment 782, which applies
retroactively and reduces by two levels many of the base offense levels for drug offenses
assigned by the drug-quantity table at USSG § 2D1.1(c). Defendant’s motion under
§ 3582(c)(2) is based on the amendment.
It is settled, however, that an amendment to the drug-quantity table at § 2D1.1(c)
provides no relief to a defendant sentenced as a career offender under USSG § 4B1.1(b).
See, e.g., United States v. Sharkey, 543 F.3d 1236, 1239 (10th Cir. 2008) (Amendment
706); United States v. Bowman, No. 15-5086, 2016 WL 1598745, at *1 (10th Cir. Apr.
21, 2016) (Amendment 782). A court may reduce a sentence under § 3582(c) only if that
reduction is consistent with the policy statement at USSG § 1B1.10. See 18 U.S.C.
§ 3582(c)(2). And under that policy statement a court may not reduce a sentence based
on an amendment to the Sentencing Guidelines if that amendment “does not have the
effect of lowering the defendant’s applicable guideline range.” USSG § 1B1.10(a)(2)(B).
Although Amendment 782 reduced Defendant’s provisional base offense level, it did not
lower his final offense level of 32, which was required by his career-offender status. See
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USSG § 4B1.1(b) (“[I]f the offense level for a career offender from the table in this
subsection is greater than the offense level otherwise applicable, the offense level from
the table in this subsection shall apply.”). The district court therefore lacked authority to
reduce Defendant’s term of imprisonment. It properly ruled that Defendant was not
entitled to relief, but it should have dismissed the motion for lack of jurisdiction instead
of denying the motion. See United States v. Graham, 704 F.3d 1275, 1279 (10th Cir.
2013) (if a sentence reduction is not authorized by §3582, “dismissal rather than denial is
the appropriate disposition.”); United States v. White, 765 F.3d 1240, 1242 (10th Cir.
2014) (“While . . . the district court did not err in holding that [the defendant] was
ineligible for a sentence reduction under § 3582(c)(2), his motion should have been
dismissed, not on the merits, but on jurisdictional grounds.”).
Defendant also argues that the court sentenced him incorrectly by wrongly
classifying him as a career offender. But § 3582(c)(2) does not grant the district court
jurisdiction to hear a challenge to the initial propriety of a sentence. A district court may
modify a sentence “only in specified instances where Congress has expressly granted the
court jurisdiction to do so.” United States v. Blackwell, 81 F.3d 945, 947 (10th Cir.
1996). “An argument that a sentence was incorrectly imposed should be raised on direct
appeal or in a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. §
2255,” not via § 3582(c)(2). United States v. Torres-Aquino, 334 F.3d 939, 941 (10th
Cir. 2003). Section 3582(c)(2) grants jurisdiction only “in the case of a defendant who
has been sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.” 28 U.S.C. § 3582(c)(2).
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We VACATE the order denying Defendant’s motion and REMAND with
instructions to DISMISS for lack of jurisdiction. Defendant’s Motion for Release
Pending Appeal is DENIED.
Entered for the Court
Harris L Hartz
Circuit Judge
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