                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                           June 21, 2016
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 15-4185
                                               (D.C. No. 2:06-CR-00672-DB-EJF-2)
ALFONSO MOYA-BRETON,                                        (D. Utah)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, HOLMES, and MORITZ, Circuit Judges.
                  _________________________________

      Alfonso Moya-Breton appeals, pro se, from the district court’s denial of his

motion for a reduced sentence under 18 U.S.C. § 3582(c)(2).1 He also seeks leave to

proceed on appeal in forma pauperis (IFP). We grant Moya-Breton’s IFP motion. But

because the district court lacked jurisdiction to consider his motion for a reduced




      *
         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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
       1
         Because Moya-Breton appears pro se, we liberally construe his pleadings.
But we won’t act as his advocate. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir.
2013).
sentence, we vacate the district court’s order denying the motion and remand with

directions to instead enter an order dismissing the motion.

       Moya-Breton pleaded guilty to one count of conspiracy to possess with intent

to distribute methamphetamine. The parties agreed to, and the district court imposed,

a 180-month prison sentence. See Fed. R. Crim. P. 11(c)(1)(C) (providing that

government may agree to specific sentence or sentencing range and that agreed-upon

sentence or range binds court once it accepts plea agreement). Moya-Breton later

moved for a reduced sentence under 18 U.S.C. § 3582(c)(2), asserting that his

sentence was based on a Guidelines sentencing range that the U.S. Sentencing

Commission subsequently lowered through an amendment to the Guidelines. The

district court denied the motion, noting that when a Rule 11(c)(1)(C) agreement

reflects that the parties “agree[d] to a particular sentence . . . that was not tied to a

particular [G]uideline[s] range,” the sentence isn’t based on a sentencing range and

§ 3582(c)(2) doesn’t authorize a reduced sentence. R. vol. 3, 165.

       Section 3582(c)(2) authorizes a district court to reduce a prison sentence if the

sentence was “based on a sentencing range that has been subsequently lowered by the

Sentencing Commission” and the reduction is consistent with the Commission’s

applicable policy statements. We ordinarily review a district court’s denial of a

§ 3582(c)(2) motion for an abuse of discretion. United States v. Hodge, 721 F.3d

1279, 1280 (10th Cir. 2013). But we review de novo the district court’s interpretation

of a statute, including its determination of whether § 3582(c)(2) authorizes the court

to consider a particular request for a reduced sentence. Id.

                                             2
      When, as here, a defendant enters into a Rule 11(c)(1)(C) plea agreement, the

defendant is eligible for a reduced sentence under § 3582(c)(2) only if the

“agreement expressly uses a Guidelines sentencing range to establish the term of

imprisonment, and that range is subsequently lowered by the Commission.” Freeman

v. United States, 564 U.S. 522, 539 (2011) (Sotomayor, J., concurring in the

judgment).2 The use of a Guidelines sentencing range must be “evident from the

agreement itself.” Id. For example, the agreement “may call for [a] defendant to be

sentenced within a particular Guidelines sentencing range,” id. at 538, or may

otherwise “make clear that the basis for [a] specified term is a Guidelines sentencing

range applicable to the offense to which the defendant pleaded guilty,” id. at 539.

      Here, the district court relied on Freeman to deny Moya-Breton’s motion.

Specifically, the court reasoned that Moya-Breton’s 180-month prison term was

based solely on the parties’ “express stipulation” to that sentence in the plea

agreement and “was not tied to a particular [G]uideline[s] range.” R. vol. 3, 165.

      Moya-Breton argues the district court erred in finding that his 180-month

sentence wasn’t based on a Guidelines sentencing range. He points out the plea

agreement expressly states, “[T]he Court must consider, but is not bound by, the

United States Sentencing Guidelines, in determining [his] sentence.” R. vol. 3, 138.

Citing this provision, Moya-Breton insists that “[a]ny reasonable person . . . would



      2
        Freeman is a plurality opinion. Because “Justice Sotomayor’s concurrence is
the narrowest grounds of decision,” it “represents the Court’s holding.” United States
v. Graham, 704 F.3d 1275, 1278 (10th Cir. 2013).
                                           3
have concluded that his sentence was based, however imprecisely,” on the

Guidelines. Aplt. Reply Br. 2.

      But this general reference to the Guidelines, without more, doesn’t “make

clear” that the parties based the stipulated 180-month sentence on any particular

Guidelines sentencing range. Freeman, 564 U.S. at 539 (Sotomayor, J., concurring in

the judgment). Compare id. at 542-43 (concluding that it was evident sentence was

“based on” Guidelines range when plea agreement (1) stated that defendant agreed to

have sentence determined by Guidelines; (2) noted defendant’s offense level and

anticipated criminal history category; (3) cited applicable Guidelines range; and

(4) agreed to sentence within that range), with United States v. Jones, 634 F. App’x

649, 651-52 (10th Cir. 2015) (unpublished) (concluding that it wasn’t evident from

plea agreement itself that sentence was based on Guidelines sentencing range when

agreement neither stated that defendant agreed to have sentence determined pursuant

to Guidelines nor “provided all the information necessary to independently calculate

the applicable Guidelines sentencing range”).

      Here, as the government points out, the plea agreement doesn’t call for Moya-

Breton to be sentenced within a particular sentencing range. Instead, it states that

Moya-Breton agreed to plead guilty under Rule 11(c)(1)(C) and that “[p]ursuant to

that rule, the government and [Moya-Breton] agree[d] that a sentence of 180 months”

was “reasonable.” R. vol. 3, 140. And the agreement doesn’t identify any specific

Guidelines sentencing range as the basis for that specified term or provide any

information from which the district court could have calculated the applicable

                                           4
sentencing range. Thus, it isn’t evident from the agreement itself that Moya-Breton’s

sentence was based on a Guidelines sentencing range. We therefore agree with the

district court’s determination that Moya-Breton isn’t eligible for a reduced sentence.

See United States v. Graham, 704 F.3d 1275, 1278 & n.5 (10th Cir. 2013)

(concluding that defendant’s sentence wasn’t based on Guidelines sentencing range

and that defendant was therefore ineligible for § 3582(c)(2) reduction when plea

agreement “called for a 25 year term of imprisonment without reference to any

Guideline[s] sentencing range”).

      Nevertheless, the district court should have dismissed Moya-Breton’s motion

rather than denying it. See id. at 1278-79.3 Accordingly, we vacate the district court’s

order denying Moya-Breton’s motion and remand with directions to instead enter an




      3
         Citing Graham, the government correctly points out that it is settled in this
circuit that a district court must dismiss a § 3582(c)(2) motion for lack of jurisdiction
when a defendant is ineligible for a reduced sentence. While we are governed by
precedent, we have previously acknowledged that some circuits take a different
approach. United States v. Banyai, 2016 WL 1732293, at *1 n.2 (10th Cir. May 2,
2016) (unpublished). See United States v. Taylor, 778 F.3d 667, 668, 670 (7th Cir.
2015) (noting Graham’s view that defendant’s ineligibility for reduced sentence
implicates jurisdiction, but concluding that “§ 3582(c)(2) does not limit a district
court’s subject-matter jurisdiction to consider a motion brought under that statute,
even a motion that the court would not be authorized to grant”); United States v.
Johnson, 732 F.3d 109, 116 n.11 (2d Cir. 2013) (stating that defendant’s ineligibility
for relief under § 3582(c)(2) isn’t a jurisdictional defect). And, in fairness to the
district court, we note that the standard form for an order disposing of a § 3582(c)(2)
motion—the AO 247—doesn’t provide a check box for dismissal; rather, it provides
district courts with only two options for disposing of the motion: “DENIED,” and
“GRANTED.” See R. vol. 3, 165.
                                            5
order dismissing the motion for lack of jurisdiction.


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




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