                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS                  April 7, 2016
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 15-4130
          v.                                                D. Utah
 ISIDRO PEREA-HERNANDEZ,                       (D.C. No. 2:12-CR-00698-TC-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, 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, Isidro Perea-Hernandez appeals the district court’s

denial of the Motion for Modification or Reduction of Sentence he filed pursuant

to 18 U.S.C. § 3582(c)(2). In 2013, Perea-Hernandez pleaded guilty to a one-


      *
        This order and judgment is not binding precedent except under the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.
count information charging him with possession of methamphetamine with intent

to distribute. See 21 U.S.C. § 841(a)(1). Perea-Hernandez and the government

agreed that the five-year statutory minimum sentence mandated by 21 U.S.C.

§ 841(b)(1)(A)(viii) was “reasonable under 18 U.S.C. § 3553.” See Fed. R. Crim.

P. 11(c)(1)(C) (permitting the parties to a plea agreement to “agree that a specific

sentence . . . is the appropriate disposition of the case”). The district court

accepted the plea and sentenced Perea-Hernandez to the five-year mandatory

minimum term of imprisonment which the court noted was “reasonable, despite

the fact that [was] quite a departure” from the low end of the advisory guidelines

range.

         On January 28, 2015, Perea-Hernandez filed a § 3582(c)(2) motion, seeking

a modification of his sentence. He asserted he was entitled to a two-level

reduction in his offense level 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 Perea-Hernandez’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). The power of a

district court to modify a defendant’s sentence, however, is limited. United States

v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996). “The scope of a district court’s

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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

sentence-modification is well-settled. It disallows sentence 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). When a defendant has been sentenced to a statutory

mandatory minimum term of imprisonment which is lower than the amended

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

motion.

      The five-year sentence Perea-Hernandez 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 it

is lower than the advisory guidelines that would have applied if the two-level

reduction set out in Amendment 782 had been in effect when Perea-Hernandez

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was sentenced. Thus, the Amendment does not have the effect of lowering Perea-

Hernandez’s sentence and 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 Perea-Hernandez 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 Perea-Hernandez’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 Perea-Hernandez’s § 3582(c)(2) motion for lack of

jurisdiction. Perea-Hernandez’s motion to proceed in forma pauperis on appeal is

granted.

                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge




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