                                                                            FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                   UNITED STATES COURT OF APPEALS                      April 5, 2016
                                                                   Elisabeth A. Shumaker
                                TENTH CIRCUIT                          Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 15-4116
                                               (D.C. No. 2:11-CR-00579-TC-1)
 PETER ANTONIO TUBENS,                                    (D. Utah)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before GORSUCH, MURPHY, and PHILLIPS, Circuit Judges.



      After examining the briefs and the appellate record, this court has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

Accordingly, the case is ordered submitted without oral argument.

      Proceeding pro se and in forma pauperis, Peter A. Tubens appeals the

district court’s denial of the Motion for Modification or Reduction of Sentence he



      *
        This order and judgment is not binding precedent except under the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.
brought pursuant to 18 U.S.C. § 3582(c)(2). In 2013, Tubens was convicted of

possession with intent to distribute 500 grams or more of a mixture or substance

containing a detectable amount of methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1). United States v. Tubens, 765 F.3d 1251, 1252 (10th Cir. 2014). On

direct appeal, Tubens challenged the trial court’s denial of his motion to suppress

evidence obtained from his carry-on bag, id. at 1254, but did not challenge his

mandatory minimum sentence of 240 months’ imprisonment and did not challenge

his status as a career offender. 1 Tubens’s conviction was affirmed by this court.

Id. at 1257.

      On January 28, 2015, Tubens filed the § 3582(c)(2) motion that is the

subject of this appeal. In his motion, Tubens argued his sentence should be

modified based on changes made to the United States Sentencing Guidelines by

Amendment 782. See USSG app. C, Amend. 782 (reducing by two levels the base

offense levels of crimes involving many of the controlled substances listed in the

Guidelines’ Drug Quantity Table). The district court denied Tubens’s motion.

      We review the denial of a § 3582(c)(2) motion for abuse of discretion.

United States v. Sharkey, 543 F.3d 1236, 1238 (10th Cir. 2008). A district court,

however, does not have unlimited jurisdiction to modify a defendant’s sentence.

Rather, a district court may only modify a sentence when specifically authorized

      1
       To the extent Tubens raises a challenge to his status as a career offender
under USSG § 4B1.1, that argument is both (1) waived because it was not raised
on direct appeal and (2) is not cognizable in a § 3582(c)(2) motion.

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to do so by Congress. United States v. Blackwell, 81 F.3d 945, 947 (10th Cir.

1996). “The scope of a district court’s authority in a [ ]sentencing [modification]

proceeding under § 3582(c)(2) is a question of law that we review de novo.”

United States v. Rhodes, 549 F.3d 833, 837 (10th Cir. 2008).

      “Under 18 U.S.C. § 3582(c)(2), a court may reduce a previously imposed

sentence if the Sentencing Commission has lowered the applicable sentencing

range and ‘such a reduction is consistent with applicable policy statements issued

by the Sentencing Commission.’” United States v. Torres-Aquino, 334 F.3d 939,

940 (10th Cir. 2003). The Sentencing Commission’s policy statement on reducing

sentences based on amendments to the Guidelines is clear. It disallows reductions

when “an amendment does not have the effect of lowering the defendant’s

applicable guideline range because of the operation of another guideline or

statutory provision (e.g., a statutory mandatory minimum term of

imprisonment.).” USSG § 1B1.10 cmt. n.1(A). Thus, in the situation where a

defendant’s sentence is cabined by a statutory mandatory minimum term of

imprisonment, a district court lacks jurisdiction to grant the defendant’s § 3582

motion. Such is the case here.

      The twenty-year sentence Tubens received is the statutory mandatory

minimum set out in 21 U.S.C. § 841(b)(1)(A)(viii) for the crime of conviction.

That statutory minimum was not affected by Amendment 782 and, thus, the




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Amendment does not have the effect of lowering Tubens’s sentencing range.

Accordingly, the district court lacked jurisdiction to modify his sentence.

      We have reviewed the record, the appellate briefs, and the applicable law

and conclude the district court did not err in ruling Tubens was not eligible for a

sentence reduction pursuant to § 3582(c)(2). Dismissal for lack of jurisdiction

rather than denial on the merits, however, was the appropriate disposition of

Tubens’s § 3582(c)(2) motion. See United States v. Graham, 704 F.3d 1275,

1279 (10th Cir. 2013). We therefore remand the matter to the district court with

instructions to vacate the order denying the motion and enter a new order

dismissing Tubens’s § 3582(c)(2) motion for lack of jurisdiction. Tubens’s

motion to file a reply brief out of time is granted.

                                           ENTERED FOR THE COURT


                                           Michael R. Murphy
                                           Circuit Judge




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