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

                             FOR THE TENTH CIRCUIT                            April 21, 2016
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                             No. 15-5086
v.                                                (D.C. No. 4:12-CR-00190-GKF-3)
                                                             (N.D. Okla.)
SAIGE ELISE BOWMAN, a/k/a Saige
Alise Bowman,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
                  _________________________________

      After the United States Sentencing Commission adopted a retroactive amendment

to the Sentencing Guidelines for various drug offenses, Defendant Saige Bowman moved

under 18 U.S.C. § 3582(c)(2) for a reduction in her sentence. The district court denied

the motion because the amendment did not reduce Defendant’s applicable guideline

sentencing range. Defendant appeals. We have jurisdiction under 28 U.S.C. § 1291. We




      *
        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 case is 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
agree with the analysis of the district court but vacate the order denying the motion and

remand for entry of an order dismissing the motion for lack of jurisdiction.

       On January 18, 2013, Defendant pleaded guilty in the United States District Court

for the Northern District of Oklahoma to one count of conspiring to distribute

methamphetamine. See 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A)(viii). Given the

amount and type of drug involved (nine kilograms of methamphetamine), her base

offense level was 36. See USSG § 2D1.1(c). But because of prior felony drug

convictions, Defendant qualified as a career offender, with a concomitant superseding

base offense level of 37. See USSG § 4B1.1(a). The district court calculated a guideline

sentencing range of 262–327 months’ imprisonment and sentenced Defendant to 120

months.

       The Sentencing Commission later adopted Amendment 782, which reduces by two

levels many of the base offense levels for drug offenses. The amendment is retroactive.

Defendant’s § 3582(c)(2) motion sought a two-point reduction under the amendment.

       As we have previously said:

          “A federal court generally ‘may not modify a term of imprisonment
          once it has been imposed.’” Dillon v. United States, 560 U.S. 817, 819
          (2010) (quoting 18 U.S.C. § 3582(c)). But an exception lies “in the case
          of a defendant who has been sentenced to a term of imprisonment based
          on a sentencing range that has subsequently been lowered by the
          Sentencing Commission.” 18 U.S.C. § 3582(c)(2). In that event the
          sentencing court “may reduce the term of imprisonment, after
          considering the factors set forth in [18 U.S.C. § ] 3553(a).” Id. Any
          reduction under § 3582(c)(2) must, however, be “consistent with
          applicable policy statements issued by the Sentencing Commission.”
          Id. The applicable policy statement is found at USSG § 1B1.10,
          “Reduction in Term of Imprisonment as a Result of Amended Guideline
          Range (Policy Statement).” See Dillon, 560 U.S. at 827 (“§ 3582(c)(2)

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          requires the court to follow the Commission’s instructions in § 1B1.10
          to determine the prisoner’s eligibility for a sentence modification.”).

United States v. Mendoza, No. 15-3151, 2016 WL 1238169, at *1 (10th Cir. Mar. 30,

2016). According to § 1B1.10, a district court is not authorized to reduce a defendant’s

sentence under an amendment to the sentencing guidelines if that amendment “does not

have the effect of lowering the defendant’s applicable guideline range.” USSG

§ 1B1.10(a)(2)(B). In some cases an amendment does not lower a defendant’s applicable

guideline range “because of the operation of another guideline or statutory provision.”

Id. cmt. n.1(A). That is the case here. Although Amendment 782 reduced the base

offense level for nine kilograms of methamphetamine under USSG § 2D1.1(c) from 36 to

34, that level is inapplicable because it is superseded by Defendant’s career-offender

level of 37. See USSG § 4B1.1(b) (“[I]f the offense level for a career offender from the

table in this subsection is greater than the offense level otherwise applicable, the offense

level from the table in this subsection shall apply.”). The district court therefore lacked

authority to reduce Defendant’s term of imprisonment.

       Defendant argues that her classification as a career offender was vitiated by

Johnson v. United States, 135 S. Ct. 2551 (2015), which held that the residual clause in

the definition of violent felony in the Armed Career Criminal Act (ACCA), 18 U.S.C.

§ 924(e)(2)(B)(ii), is unconstitutionally vague. She correctly points out that the definition

of crime of violence in the guidelines has the same language in its residual clause, USSG

§ 4B1.2(a)(2), as is in the residual clause of the ACCA definition of violent felony. But

we reject her argument on two grounds. First, § 3582(c)(2) authorizes a sentence


                                              3
reduction only if a defendant’s guideline range “has subsequently been lowered by the

Sentencing Commission.” That section may not be used to challenge the constitutionality

of a sentence based on a decision of the United States Supreme Court. See United States

v. Price, 438 F.3d 1005, 1007 (10th Cir. 2006) (“[E]ven if [a Supreme Court decision]

could be read to be an implicit lowering of [the defendant’s] sentencing range,

§ 3582(c)(2) only expressly allows a reduction where the Sentencing Commission, not

the Supreme Court, has lowered the range.” (emphasis omitted)). Defendant’s challenge

can now be raised only (if at all) under 28 U.S.C. § 2255. See United States v. Gay, 771

F.3d 681, 686 (10th Cir. 2014) (“Nothing in the limited congressional grant of authority

to modify sentences provided by § 3582(c)(2) allows [the defendant] to challenge the

constitutionality of his sentence. He must do so either on direct appeal or in a § 2255

petition.”).

       Second, Defendant’s challenge loses on the merits. To be a career offender one

must have “at least two prior felony convictions of either a crime of violence or a

controlled substance offense.” USSG § 4B1.1(a). Defendant argues that she was

erroneously classified as a career offender because her conviction for passing a bad check

was wrongly deemed a crime of violence. That conviction, however, was not considered

in determining that she was a career offender. That status was based on her prior drug

convictions. The Johnson ruling concerning the vagueness of the residual clause was

irrelevant.

       We also reject Defendant’s argument that her prior drug offenses should be

counted as only one offense under USSG § 4A1.2(a)(2). The guidelines state that

                                             4
“[p]rior sentences always are counted separately if … the defendant is arrested for the

first offense prior to committing the second offense,” id., and Defendant committed her

second offense more than a year after her arrest for the first offense.

       Thus, the district court properly ruled that Defendant was not entitled to relief.

But rather than entering an order denying relief, the court should have dismissed the

motion for lack of jurisdiction. See United States v. Graham, 704 F.3d 1275, 1279 (10th

Cir. 2013) (if a sentence reduction is not authorized by § 3582, “dismissal rather than

denial is the appropriate disposition.”).

       We VACATE the order denying Defendant’s motion and REMAND with

instructions to DISMISS for lack of jurisdiction. Defendant’s motion to proceed in forma

pauperis is DENIED.


                                               Entered for the Court


                                               Harris L Hartz
                                               Circuit Judge




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