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

                       FOR THE TENTH CIRCUIT                        June 28, 2016
                       _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                   No. 15-4183
                                           (D.C. No. 2:12-CR-00662-DN-1)
ARNOLD CEBALLOS-LEPE,                                 (D. Utah)

       Defendant - Appellant.
                      _________________________________

                        ORDER AND JUDGMENT *
                        _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

      Under 18 U.S.C. § 3582(c)(2), federal district courts can reduce a

prison term that was “based on a sentencing range that has subsequently

been lowered by” the U.S. Sentencing Commission. 18 U.S.C.

§ 3582(c)(2). Mr. Arnold Ceballos-Lepe invoked § 3582(c)(2) after

pleading guilty to drug charges and obtaining a sentence stipulated in his

plea agreement. Though his sentence was based on a stipulation, he argues

*
      The Court has determined that oral argument would not materially
aid our consideration of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir.
R. 34.1(G). Thus, we have decided the appeal based on the briefs.

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But our order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
that § 3582(c)(2) allows the district court to modify the sentence based on

a subsequent amendment to the Sentencing Guidelines. We disagree. Mr.

Ceballos-Lepe’s sentence was based on a stipulation made independently

of the guidelines themselves. Consequently, the district court properly

concluded that it had no authority to modify Mr. Ceballos-Lepe’s sentence

under § 3582(c)(2).

                                    * * *

      Mr. Ceballos-Lepe was charged in federal court with possession of

methamphetamine with intent to distribute. He entered a plea agreement

with the government under Federal Rule of Criminal Procedure

11(c)(1)(C). Under this agreement, Mr. Ceballos-Lepe would plead guilty

and receive a prison term of 180 months. The sentencing court accepted the

agreement and sentenced Mr. Ceballos-Lepe to the stipulated 180 months

in prison.

      After Mr. Ceballos-Lepe was sentenced, the U.S. Sentencing

Commission issued an amendment to the guidelines, Amendment 782. This

amendment retroactively reduces the guidelines’ sentencing ranges for

many drug offenders. Mr. Ceballos-Lepe argues that Amendment 782

entitles him to a lower guideline range. On that basis, he contends that his

prison term should be reduced under § 3582(c)(2).

      But Mr. Ceballos-Lepe was sentenced to 180 months under Rule

11(c)(1)(C) based on a stipulated sentence. In our view, the district court

                                      2
could not reduce the sentence under § 3582(c)(2) because the parties’

stipulation and the judge’s explanation of the sentence did not purport to

rely on the applicable guideline range.

      We addressed this issue in United States v. Graham, 704 F.3d 1275

(10th Cir. 2013). There, we held that § 3582(c)(2) authorizes a district

court to reduce a stipulated prison term in light of a guideline amendment

only when the parties stipulate to a prison term that is expressly based on a

particular guideline range. Id. at 1278. “But, when the plea deal does not

‘use’ or ‘employ’ a Guideline sentencing range, the defendant is not

entitled to the benefit of the [Guidelines] amendment.” Id. (quoting

Freeman v. United States, 564 U.S. 522, 539-40 (2011) (Sotomayor, J.,

concurring)). 1

      Graham precludes the district court from granting relief to Mr.

Ceballos-Lepe under § 3582(c)(2). The relevant portion of the plea

agreement invokes Rule 11(c)(1)(C) and states that “the sentence imposed

by the [district court] will be 180 months imprisonment.” R. at 48. Nothing

in the plea agreement suggests that this stipulation was based on a

particular guideline range.

1
      In Graham, we followed Justice Sotomayor’s concurring opinion in
Freeman v. United States, 564 U.S. 522 (2011). Because we viewed Justice
Sotomayor’s concurrence as the narrowest ground of decision in Freeman,
we concluded that the concurrence represented the Court’s holding in that
case. Graham, 704 F.3d at 1278 (citing Freeman, 564 U.S. at 534-44
(Sotomayor, J., concurring)).

                                      3
     Nor does the transcript of the sentencing hearing suggest that the

sentencing court relied on a particular guideline range. Instead, the

sentencing court stated that it was “going to impose sentence in accordance

with the agreement, a sentence of 180 months.” R. at 277. Under these

circumstances, we conclude that Mr. Ceballos-Lepe’s sentence was not

imposed based on a particular guideline range. As a result, the district

court properly concluded that it had no authority under § 3582(c)(2) to

reduce Mr. Ceballos-Lepe’s sentence.

     Mr. Ceballos-Lepe argues that the district court erred in rejecting his

§ 3582(c)(2) motion because the court did not sufficiently consider the

presentence report. The presentence report, Mr. Ceballos-Lepe maintains,

proves that the sentencing court imposed his sentence based on the

guidelines.

     This argument is factually invalid and legally immaterial. The

argument is factually invalid because there is no evidence that the district

court failed to consider the presentence report. The argument is also

legally immaterial. Even if Mr. Ceballos-Lepe’s interpretation of the

presentence report is correct, this interpretation would not show that the

sentencing court relied on the guidelines rather than the stipulation. The

presentence report was prepared by the Probation Office, not the district

court. See Fed. R. Crim. P. 32(c)(1)(A) (requiring the probation department

to prepare the presentence report). Regardless of anything in the

                                      4
presentence report, the plea agreement clearly reflects the parties’

stipulation to a 180-month prison term; and the district court accepted that

stipulation without referring to any particular guideline range. Thus, the

probation department’s recommendation does not bear on the sentencing

court’s reasons for imposing a 180-month prison term.

                                    * * *

     For these reasons, the district court properly concluded that it could

not reduce Mr. Ceballos-Lepe’s sentence. Nonetheless, the district court

should have dismissed Mr. Ceballos-Lepe’s § 3582(c)(2) motion for lack of

jurisdiction rather than deny relief. See United States v. Graham, 704 F.3d

1275, 1279 (10th Cir. 2013) (concluding that the appropriate disposition

under these circumstances is dismissal for lack of jurisdiction rather than

denial of relief). Accordingly, we vacate the order denying relief and

remand with instructions to order dismissal based on a lack of jurisdiction.

                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




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