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

                             FOR THE TENTH CIRCUIT                        October 7, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                  Nos. 16-6031 and 16-6079
                                                (D.C. Nos. 5:13-CR-00194-R-1 and
JESSICA RENEE CHRONISTER,                              5:13-CR-00033-R-1)
                                                           (W.D. Okla.)
      Defendant - Appellant.

–––––––––––––––––––––––––––––––––––

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,                     Nos. 16-6162, 16-6157 and 16-6159
                                                  (D.C. Nos. 5:16-CV-00543-R,
v.                                           5:13-CR-00194-R-1, 5:13-CR-00034-R-1,
                                                      and 5:16-CV-00541-R)
JESSICA RENEE CHRONISTER,                                  (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.
                   _________________________________



      *
         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 cases are
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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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 consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Jessica Renee Chronister pleaded guilty to two counts of possessing with

intent to distribute methamphetamine, and to one count of conspiring to escape

custody. Chronister has filed multiple appeals, which we have consolidated into two

groups of cases. In the first (16-6031 and 16-6079), Chronister appeals the district

court’s denial of her motion for a sentence reduction under 18 U.S.C. § 3582(c)(2)

and Amendment 782. In the second (16-6157, 16-6159, and 16-6162), she requests a

certificate of appealability (COA) for her claim under 28 U.S.C. § 2255. Exercising

jurisdiction under 28 U.S.C. 1291, we affirm the district court orders, deny a COA,

and deny in forma pauperis status.

                                   BACKGROUND

      In January 2013, a federal grand jury in the Western District of Arkansas

indicted Jessica Renee Chronister on a charge of possessing, with intent to distribute,

50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(B). In February 2013, a federal grand jury in the Western District of Oklahoma

indicted Chronister on five other charges: maintaining a residence for the purpose of

methamphetamine use and distribution, in violation of 21 U.S.C. § 856(a)(1);

interstate transportation in aid of racketeering, in violation of 18 U.S.C. § 1952(a)(3);

possessing methamphetamine with the intent to distribute it, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(B); possessing marijuana with the intent to distribute it, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(D); and possessing a firearm in furtherance

of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Also in

February 2013, the grand jury in the Western District of Oklahoma indicted

                                           2
Chronister with conspiring to escape pretrial custody, in violation of 18 U.S.C. §§

751, 371. With Chronister’s consent, see FED. R. CRIM. P. 20, the district court in

Arkansas transferred jurisdiction to the Western District of Oklahoma, where all

three cases were consolidated and the government and Chronister entered into a

written plea agreement. Chronister pleaded guilty to the methamphetamine charge

from    the    Arkansas     indictment,    the    possession-with-intent-to-distribute-

methamphetamine charge from the Oklahoma indictment, and the escape charge from

the second Oklahoma indictment. Based on the stipulated methamphetamine weight

in the plea agreement, the district court set Chronister’s base-offense level at 34. In

addition, the district court applied three specific offense characteristics: two levels

for possessing a firearm connected to the methamphetamine offense, under U.S.S.G.

§ 2D1.1(b)(1); two levels for maintaining a drug house, under U.S.S.G. §

2D1.1(b)(12); and two levels for obstructing justice, under U.S.S.G. § 3C1.1. From

the adjusted offense level of 40, the court reduced three levels for timely acceptance

of responsibility, under U.S.S.G. § 3E1.1. This left Chronister with a total offense

level of 37. That offense level, combined with her Criminal History Category of III,

produced an advisory guideline range of 262 to 327 months’ imprisonment. The

district court adopted the PSR without changes, but varied downward to 168 months

on the methamphetamine charges and to 60 concurrent months on the escape charge.

       Despite an appeal waiver in her plea agreement, Chronister appealed. In

United States v. Chronister, 573 F. App’x 816 (10th Cir. 2014), we enforced the

appeal waiver and dismissed the appeal. Chronister later filed a motion for a sentence

                                          3
reduction based on Amendment 782 to the Sentencing Guidelines. The district court

denied the motion, and Chronister appealed. Chronister also filed a habeas motion

under 28 U.S.C. § 2255, asking for relief based on Johnson v. United States, 135 S.

Ct. 2551 (2015). The district court denied the habeas motion. Chronister now asks for

a COA.

                                   DISCUSSION

1.    Chronister’s sentence is too low for further reduction.

      We review de novo a district court’s interpretations of statutes or the

sentencing guidelines. United States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997).

Even though Chronister received a sentence below the range that applies after

Amendment 782, she still claims that the district court erred by denying her motion

for sentence reduction under § 3582(c)(2). The PSR found Chronister responsible for

113.9 grams of methamphetamine and 206.82 grams of actual methamphetamine,

resulting in a marijuana equivalent of 4,364.2 kilograms and a base-offense level of

34 under the 2013 Guidelines. In 2014, Amendment 782 to the sentencing guidelines

retroactively lowered the base-offense level for that marijuana weight to level 32. See

United States v. Kurtz, 819 F.3d 1230, 1234 (10th Cir. 2016). But federal courts have

the power to lower an imposed sentence only when Congress authorizes them to do

so. Dillon v. United States, 560 U.S. 817, 824 (2010). For many applications,

Congress has done so for defendants receiving a sentence based on a guideline range

that the United States Sentencing Commission later lowers. 18 U.S.C. § 3582(c)(2).

Congress has also mandated that any sentencing reductions under § 3582(c)(2) must

                                          4
comply with the Commission’s relevant policy statements. Id. Although the

Sentencing Guidelines are no longer mandatory, United States v. Booker, 543 U.S.

220 (2005), the Commission’s policy statements for § 3582(c)(2) remain mandatory.

Dillon, 560 U.S. at 828. One such policy statement prohibits § 3582(c)(2) reductions

if the existing sentence is already lower than the amended guideline range.1 U.S.

SENTENCING GUIDELINES MANUAL § 1B1.10(b)(2)(A) (U.S. SENTENCING COMM’N

2015). We have repeatedly affirmed this prohibition. See, e.g., United States v.

Rhodes, 549 F.3d 833, 841 (10th Cir. 2008); United States v. Pedraza, 550 F.3d

1218, 1220-22 (10th Cir. 2008).

       Because Chronister seeks a sentence below her post-amendment guideline

range, the district court was right to deny her motion. Chronister argues that if the

district court calculated her sentence today, her offense level would be 35 and yield a

guideline range of 210 to 262 months. Her calculation is correct, but her actual

sentence of 168 months is lower than even the bottom of that amended range. Thus,

she is not entitled to § 3582(c)(2) relief.

       Chronister briefly raises a constitutional argument against the binding effect of

the Commission’s policy statements concerning § 3582(c)(2). She cites a concern that

Justice Stevens raised in his Dillon dissent: that the binding effect of the policy

statements rested on “dubious constitutional footing” and might violate separation of

powers by giving the Sentencing Commission a “barely constrained form of


       1
         Except when the government makes a motion to reflect a defendant’s
substantial assistance. USSG § 1B1.10(b)(2)(B).
                                              5
lawmaking authority” over the federal courts. 560 U.S. at 833. Neither party in

Dillon had briefed the issue, and the majority declined to address it. Id. at 826 n.5.

On appeal, Chronister devotes just one paragraph to the separation-of-powers issue,

neglecting it entirely in the district court. Her failure to raise the issue there forfeits

her ability to do so here.2 See Paycom Payroll, LLC v. Richison, 758 F.3d 1198, 1203

(10th Cir. 2014).

2.     Chronister is not entitled to a COA for her habeas motion.

       Chronister raises no issue that entitles her to a COA on her habeas claim.

Because Chronister is pro se in her § 2255 action, we construe her pleadings

liberally, but we do not serve as her advocate. Yang v. Archuleta, 525 F.3d 925, 927

n.1 (10th Cir. 2008). A COA is available “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This requires

the prisoner to show “that reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.” Slack

v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other

words, the defendant must show that the district court’s resolution of the

constitutional claim was either “debatable or wrong.” Id.

       2
        Even had Chronister not forfeited it, this circuit, and many others, have
already considered the separation-of-powers objection and rejected it. United States
v. McGee, 615 F.3d 1287, 1292 n.2 (10th Cir. 2010) (citing United States v. Dryden,
563 F.3d 1168, 1171 (10th Cir. 2009)); see, e.g., United States v. Fox, 631 F.3d 1128,
1133 (9th Cir. 2011); United States v. Garcia, 655 F.3d 426, 434-5 (5th Cir. 2011);
United States v. Erskine, 717 F.3d 131, 138-9 (2d Cir. 2013).

                                            6
      Even when we review Chronister’s pleadings liberally, Chronister makes no

such showing. She claims that she is due a sentence reduction because of the

Supreme Court’s recent invalidation of the residual clause of the Armed Career

Criminal Act (ACCA) as impermissibly vague. Johnson v. United States, 135 S. Ct.

2551 (2015). But Chronister was not sentenced under the ACCA, or under any

sentencing provision implicating its residual clause. Therefore, no reasonable jurist

could debate whether a different outcome was warranted.

      Chronister also filed a motion to proceed in forma pauperis in the § 2255

action. To be granted in forma pauperis status, Chronister must show both an

inability to pay the filing fees and good faith, as shown by “the existence of a

reasoned, nonfrivolous argument….” McIntosh v. U.S. Parole Comm’n, 115 F.3d

809, 812 (10th Cir. 1997) (quoting DeBardeleben v. Quinlan, 937 F.2d 502, 505

(10th Cir. 1991)). As discussed, Chronister’s appeal to Johnson is of no avail because

she was not sentenced under the ACCA. In her effort to draw an analogy, Chronister

cites United States v. Martinez, 821 F.3d 984 (8th Cir. 2016). But Martinez is legally

distinct from Chronister’s case because it involved career-offender sentencing, which

involves a nearly identical residual clause as provided in the ACCA. Unlike

Chronister’s claim, Martinez’s similar claim to that in Johnson presented a

nonfrivolous argument for habeas relief. Thus, we deny in forma pauperis status.




                                          7
                                 CONCLUSION

      We affirm the district court orders, deny a COA, and deny Chronister in forma

pauperis status.




                                         Entered for the Court


                                         Gregory A. Phillips
                                         Circuit Judge




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