Appellate Case: 23-6064 Document: 010110989775 Date Filed: 01/25/2024 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 25, 2024
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-6064
(D.C. No. 5:07-CR-00120-F-1)
SHAWN J. GIESWEIN, (W.D. Okla.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BALDOCK, and EID, Circuit Judges.
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Shawn J. Gieswein, a federal prisoner proceeding pro se, appeals the
district court’s dismissal of his motion seeking a sentence reduction under 18 U.S.C.
§ 3582(c)(2) for lack of jurisdiction. Exercising jurisdiction under 28 U.S.C. § 1291,
we affirm.
Mr. Gieswein was convicted in 2008 of being a felon in possession of a
firearm and witness tampering. He is serving a 240-month prison sentence pursuant
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
Appellate Case: 23-6064 Document: 010110989775 Date Filed: 01/25/2024 Page: 2
to an amended judgment entered in 2016. Mr. Gieswein filed a motion in April 2023
seeking a sentence reduction based on an amendment to the sentencing guidelines
promulgated by the Sentencing Commission. The amendment was scheduled to be
submitted to Congress on May 1, 2023. It would take effect on November 1, 2023, if
not blocked by Congress. At the time Mr. Gieswein filed his motion, the Sentencing
Commission had not yet conducted a retroactivity impact analysis to determine
whether the relevant amendment would be applied retroactively to previously
sentenced defendants.
The district court dismissed Mr. Gieswein’s motion for lack of jurisdiction
because the court was not statutorily authorized to modify his sentence. In particular
(among other reasons), the amendment he relied on for a sentence reduction was not
yet effective in April 2023.
We review de novo the scope of the district court’s authority to modify a
sentence under § 3582(c)(2). See United States v. Williams, 575 F.3d 1075, 1076
(10th Cir. 2009). “Generally, a district court may not modify a term of imprisonment
once it has been imposed.” Id. at 1077 (internal quotation marks omitted). But
Congress has established a narrow exception to that rule of finality in § 3582(c)(2).
See id. That section authorizes a sentence reduction “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.” § 3582(c)(2). Because
the amendment that Mr. Gieswein relied on was not yet effective when he filed his
motion, the Sentencing Commission had not yet “lowered” any sentencing range. He
2
Appellate Case: 23-6064 Document: 010110989775 Date Filed: 01/25/2024 Page: 3
therefore failed to overcome the first hurdle to obtain a sentence reduction under
§ 3582(c)(2). See United States v. C.D., 848 F.3d 1286, 1289 (10th Cir. 2017).1
On appeal, Mr. Gieswein concedes that the amendment he relied on for a
sentence reduction was not yet effective when he filed his motion and that his motion
was therefore premature. His predictions that the amendment would become
effective and would be made retroactive did not give the district court jurisdiction to
act on the amendment beforehand. See id. (requiring dismissal of a motion for lack
of jurisdiction where defendant fails to show he was sentenced based on a guideline
range subsequently lowered by the Sentencing Commission).
We affirm the district court’s judgment. We deny as moot Mr. Gieswein’s
request to abate this appeal until the amendment becomes effective. We also deny
his request for assignment of his case to a new district court judge. And we deny
Mr. Gieswein’s motion to proceed on appeal without prepayment of fees and costs.
Consequently, he must immediately pay the full amount of appellate filing fees and
costs.
Entered for the Court
Bobby R. Baldock
Circuit Judge
1
We take no position on whether the relevant amendment would result in a
reduction of Mr. Gieswein’s sentence once it became effective.
3