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

                                   TENTH CIRCUIT                                July 20, 2010

                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                            No. 10-8010
                                                               (D. Wyo.)
ERIC GRAYSON,                                      (D.C. No. 1:08-CR-00173-WFD-1)

       Defendant - Appellant.




                               ORDER AND JUDGMENT*


Before BRISCOE, Chief Circuit Judge, TACHA, and O'BRIEN, Circuit Judges.


       After examining the briefs and the appellate record, this panel concludes 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). This case is submitted for decision without oral

argument.

       Eric Grayson entered into a Rule 11(c)(1)(C) plea agreement which called for 180

months imprisonment. Pursuant to the agreement, he pled guilty to offenses involving


       *
         This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
the distribution of crack cocaine. The district court accepted the binding agreement and

plea; it sentenced Grayson accordingly. Eleven months later, Grayson moved, pro se,1 to

reduce his sentence under 18 U.S.C. § 3582(c)(2). The district court dismissed for lack

of jurisdiction. He appealed.2 We affirm.

                                  I.      BACKGROUND

       Grayson pled guilty to two counts of aiding and abetting the distribution of crack

cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2 and one count

of conspiracy to possess with intent to distribute crack cocaine in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(B), 846 and 851, committed on May 19, 2008. On January 8, 2009,

the district court accepted the plea agreement and, being bound by it, imposed the

sentence agreed upon by Grayson and the government — 180 months imprisonment. See

Fed. R. Crim. P. 11(c)(1)(C).3; cf. Fed. R. Crim. P. 11(c)(1)(B) (non-binding sentencing

recommendations). On December 16, 2009, Grayson moved to reduce the sentence

       1
        We liberally construe pro se pleadings. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
       2
         Our jurisdiction derives from 18 U.S.C. § 3742(a)(2), which permits appeals
from sentences “imposed as a result of an incorrect application of the sentencing
guidelines,” and from 28 U.S.C. § 1291, which permits “appeals from all final decisions
of the district courts of the United States . . . .”
       3
           The rule provides in relevant part:

       If the defendant pleads guilty . . . to . . . a charged offense . . ., the plea
       agreement may specify that an attorney for the government will: . . . agree
       that a specific sentence or sentencing range is the appropriate disposition of
       the case . . . (such a recommendation or request binds the court once the
       court accepts the plea agreement).

Fed. R. Crim. P. 11(c)(1)(C).


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under 18 U.S.C. § 3582(c)(2). He argued Amendment 7064 to the United States

Sentencing Guidelines required a sentence reduction. Relying on United States v.

Trujeque, 100 F.3d 869 (10th Cir. 1996), the court denied the motion for lack of

jurisdiction, saying “Grayson may not seek a sentence reduction under [18 U.S.C. §

3582(c)(2)] as his sentence was part of a plea agreement specifying a term of

imprisonment pursuant to Rule 11(c)(1)(C).” (R. Vol. I at 67.)

                                 II.      DISCUSSION

       Our review is de novo. United States v. Cobb, 584 F.3d 979, 982 (10th Cir. 2009),

reh’g en banc granted, 595 F.3d 1202 (10th Cir.), reh’g en banc vacated and judgment

reinstated, 603 F.3d 1201 (10th Cir. 2010). A district court’s ability to alter an imposed

prison term is statutorily constrained. “[A] court may not modify a term of imprisonment

once it has been imposed except . . . in the case of a defendant who has been sentenced

to a term of imprisonment [1] based on a sentencing range that [2] has subsequently been

lowered by the Sentencing Commission . . . .” 18 U.S.C. § 3582(c)(2) (emphasis added).

As this case does not fall within the statutory exception, the district court was powerless

to grant the requested relief.

A. “Based On” the Sentencing Guidelines

       Trujeque held a sentence imposed pursuant to Rule 11(c)(1)(C) is “not ‘based on a



       4
         In 2007, the United States Sentencing Commission amended the drug quantity
table in USSG §2D1.1(c) to reduce the sentencing disparity between crack cocaine and
powder cocaine. USSG App. C, Amend. 706 (2007). The amendment reduced the base
offense level for crack cocaine-related offenses by two levels. See United States v.
Rhodes, 549 F.3d 833, 835 (10th Cir. 2008), cert. denied, 129 S. Ct. 2052 (2009).


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sentencing range that has subsequently been lowered by the Sentencing Commission’ . . .

.” 100 F.3d at 871 (quoting 18 U.S.C. § 3582(c)(2)). In that case, we concluded the

district court “should have dismissed Mr. Trujeque’s motion without considering its

merits.” Id.

       In Cobb we distinguished Trujeque’s sentence, which was “well below the low

end of his [statutory guideline] range” and was specifically controlled by Rule

11(c)(1)(C). 584 F.3d at 983. Cobb’s plea agreement did not require a specific term of

imprisonment; instead it identified a guideline sentencing range, which the parties agreed

was appropriate. It was, accordingly, “tied to the guidelines at every step.” Id. We said

a district court has the authority under 18 U.S.C. § 3582(c)(2) to reduce a sentence

imposed pursuant to a Rule 11(c)(1)(C) plea agreement “where . . . the sentence was

based at least in part on the then-applicable sentencing range.” Id. at 985.

       Grayson relies on Cobb, arguing “the District Court had authority to reduce [his]

sentence, even though it was imposed pursuant to a plea agreement.” (Appellant’s

Opening Br. at 3.) But this case is more like Trujeque because the court was bound to

impose the 180-month sentence stipulated to in the plea agreement; it was not merely

constrained to impose a sentence within the appropriate guideline range as in Cobb. The

district court specifically acknowledged the term of imprisonment was not framed by the

guidelines, saying: “I’ve now accepted the plea agreement without conditions[;] I’ve

accepted the binding provisions. I have bound myself to the terms of this binding plea

agreement, and I must sentence you in accordance with its provisions[—] a term of 180

months concurrent as to Counts One, Two and Three.” (R. Supp. Vol. I at 61.) The

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requirement of 18 U.S.C. § 3582(c)(2) — that the sentence sought to be reduced was

originally “based on” a subsequently lowered guideline range — was not satisfied.

B. “Subsequently” Lowered

       The district court was precluded from granting the reduction for another, equally

persuasive, reason. Amendment 706 went into effect on November 1, 2007. United

States v. Rhodes, 549 F.3d 833, 835 (10th Cir. 2008), cert. denied, 129 S. Ct. 2052

(2009). Grayson’s crimes were committed in May 2008, he was indicted on July 24,

2008, he pled guilty on October 17, 2008, and he was sentenced on January 8, 2009.

Amendment 706 was in effect throughout. He was not sentenced to a term of

imprisonment based on a guideline range which was “subsequently” lowered by the

Sentencing Commission. See United States v. Darton, 595 F.3d 1191, 1195 (10th Cir.)

(where “Amendment 706 would not lower the offense level or criminal-history category

of [the defendant] . . . [he] cannot say that he has been sentenced to a term of

imprisonment based on a sentencing range that has subsequently been lowered by the

Sentencing Commission.”) (quotations omitted), cert. denied, --- S. Ct. ---,

2010 WL 1991552 (2010).

       AFFIRMED.

       We DENY Grayson’s motion for leave to proceed on appeal in forma pauperis.

To be permitted in forma pauperis status “an appellant must show a financial inability to

pay the required filing fees and the existence of a reasoned, nonfrivolous argument on the

law and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937

F.2d 502, 505 (10th Cir. 1991) (emphasis added). As discussed above, Grayson has not

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presented a reasoned, non-frivolous argument in support of the issues raised on appeal.

He must immediately pay the filing and docket fees in full.

                                         Entered by the Court:

                                         Terrence L. O’Brien
                                         United States Circuit Judge




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