                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 August 9, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                     No. 12-1033
 DWAYNE WILSON,                               (D.C. No. 1:03-CR-36-RPM-10)
                                                         (D. Colo.)
          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge. **


      The Fair Sentencing Act of 2010 (FSA), Pub. L. No. 111–220, 124 Stat. 2372,

reduced the disparity in sentencing between crack cocaine and powder cocaine

offenses, and increased the threshold quantity of crack cocaine required to prompt

a mandatory minimum sentence. Prior to the FSA’s enactment, a jury, in 2005,

convicted Defendant of multiple crack cocaine offenses. We affirmed Defendant’s

sentence on direct appeal. United States v. Wilson, 183 F. App’x 814 (10th Cir.

      *
         This order and judgment is not binding precedent except under the doctrines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.
      **
         After examining the briefs and appellate record, this panel 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). The case is therefore
ordered submitted without oral argument.
2006) (unpublished). Defendant subsequently filed a motion for modification of

imprisonment pursuant to 18 U.S.C. § 3582(c)(1)(B), in which he requested a

reduction of his sentence based on the new standards set forth in the FSA. The

district court denied the motion, concluding Congress did not make the FSA

retroactive. Defendant appeals pursuant to 28 U.S.C. § 1291, requesting leave to

proceed on appeal in forma pauperis (IFP).          We review the district court’s

determination that Defendant is ineligible for a sentence reduction de novo. 1

Applying this standard, we grant Defendant’s request to proceed IFP, turn to the

merits, and conclude the district court properly denied Defendant’s motion for

modification of imprisonment. Accordingly, we affirm.

                                          I.

      The Government indicted Defendant on eighteen counts related to the

distribution of crack cocaine, powder cocaine, and marijuana. Additionally, the

Government filed an Information prior to trial pursuant to 21 U.S.C. § 851 to

establish Defendant’s prior drug conviction in support of enhanced penalties for the

charged conduct. Subsequently, a jury convicted Defendant on thirteen of the



      1
        We acknowledge that we generally review a district court’s decision not to
grant a sentence reduction pursuant to § 3582(c)(2) for abuse of discretion. But in
this case, the district court did not exercise its discretion in denying a modification
of sentence using discretionary sentencing factors. Instead, the district court
concluded Defendant was ineligible for a modification. See United States v. Rhodes,
549 F.3d 833, 837 (10th Cir. 2008) (concluding that we review de novo the district
court’s scope of authority in a resentencing proceeding).

                                          2
eighteen counts, resulting in a Guideline range of 262 to 327 months. Three of the

counts, including one count for conspiracy, one count for manufacture and

possession with intent to distribute crack cocaine, and one count for manufacture,

distribution, and possession with intent to distribute crack cocaine, carried a 240

month mandatory minimum because they involved 50 grams or more of crack

cocaine and Defendant had a prior felony drug conviction.                21 U.S.C.

§ 841(b)(1)(A)(iii). 2   The district court sentenced Defendant to the statutory

minimum of 240 months on each of the three counts under 21 U.S.C. § 841(a), to run

concurrently. He also received a 240-month sentence on an additional count, to run

concurrently. Finally, Defendant received lesser concurrent sentences on the other

nine charges. 3

      After we affirmed his conviction and sentence, on March 24, 2008, Defendant

filed a “Motion to be Resentenced.” Defendant based his motion on modifications

made in the November 2007 United States Sentencing Guidelines. The district court

      2
       The 2010 amended statute changed the amount needed to trigger the
mandatory minimum from 50 grams to 280 grams. 21 U.S.C. § 841(b)(1)(A)(iii).
      3
        On August 25, 2008, Defendant filed a letter stating he had mailed a habeas
corpus petition pursuant to 28 U.S.C. § 2255 in March of 2008, but had not heard
from the court. No docket entry exists prior to August 25, 2008 involving a habeas
petition as to Defendant. The district court docketed the August 25, 2008 filing as
a “Motion to Vacate under 28 U.S.C. 2255.” The district court opened a civil action
on that same day, 1:08-CV-1818. Over two years later, on October 13, 2010,
Defendant filed a document entitled “Exparte Motion to Redocket Misplaced or Loss
2255 Motion from District Court File.” The district court labeled this document a
“Motion to Reconsider.” The district court has not yet ruled on these motions in that
separate action.

                                         3
denied that motion, reasoning that the new amendments to the Guidelines had no

effect on Defendant’s sentence because of the operation of the statutory mandatory

minimum imposed. Defendant then filed a motion for new hearing asserting the

district court did not have jurisdiction to sentence him and the Government did not

prove the offenses for which he was sentenced. The district court denied the motion

as frivolous.

      On January 5, 2012, Defendant filed the present motion in which he requested

a sentence reduction to the new mandatory minimum sentence specified in the FSA.

Defendant requested relief pursuant to 18 U.S.C. § 3582(c)(1)(B), contending the

district court should modify his sentence because the FSA expressly permits the

modification. The district court denied the motion, stating “Congress did not provide

for retroactive application of the new mandatory minimum and this Court does not

have the authority to make the change retroactive.” Defendant then appealed the

order to this Court.

                                          II.

      Generally, a federal court may not modify a term of imprisonment once

imposed. Dillon v. United States, 130 S. Ct. 2683, 2687 (2010). Congress, however,

has provided for an exception to that rule in limited instances: “(1) . . . upon motion

of the Director of the Bureau of Prisons; (2) to the extent otherwise expressly

permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure; and

(3) . . . where the applicable sentencing range has subsequently been lowered by the

                                          4
Sentencing Commission.” United States v. Lonjose, 663 F.3d 1292, 1299 (10th Cir.

2011) (internal quotation marks and footnote omitted). Defendant asserts the FSA

expressly permits modification of his sentence. We disagree. We have repeatedly

held that “the FSA does not apply retroactively to individuals who were sentenced

before it went into effect.” 4 United States v. Osborn, 679 F.3d 1193, 1194 n.1 (10th

Cir. 2012). Despite our prior holdings, Wilson contends the statute is ambiguous as

to retroactivity and that we must apply the rule of lenity. But Wilson’s reliance on

the rule of lenity is misplaced. “The rule of lenity requires ambiguous criminal laws

to be interpreted in favor of the defendants subjected to them.” United States v.

Santos, 553 U.S. 507, 514 (2008). “The rule, however, is reserved for cases where,

after seizing everything from which aid can be derived, the Court is left with an

ambiguous statute.”    DePierre v. United States, 131 S. Ct. 2225, 1137 (2011)



      4
         Defendant also asserts Justice Sotomayor’s concurrence in Freeman v. United
States, 131 S. Ct. 2685, 2695 (2011), implies his sentence was “based on” a specified
sentencing range within the meaning of 3582(c). In Freeman, the defendant entered
into a plea agreement. Justice Sotomayor stated that she believed “if a (C)
agreement expressly uses a Guidelines sentencing range applicable to the charged
offense to establish the term of imprisonment, and that range is subsequently lowered
by the United States Sentencing Commission, the term of imprisonment is ‘based on’
the range employed and the defendant is eligible for a sentence reduction under
§ 3582(c)(2).” Id. Defendant did not enter into a plea agreement, but instead went
to trial. Moreover, the district court expressly acknowledged that “the 240 months
on these three counts drives the sentence” and that the case involved “a mandatory
minimum sentence that [is] more than adequate to punish the offense and to punish
Mr. Wilson. . . . But . . . I can’t go below that . . . statute.” Record on Appeal,
Supplemental Vol. I, Doc. 1116. The record makes clear that Defendant’s sentence
was based on a statutory mandatory minimum rather than the Guidelines.

                                         5
(internal quotation marks omitted). Congressional intent is clear. No provision for

retroactivity exists in the FSA. 5 Osborn, 679 F.3d at 1194 n.1 Accordingly, the

district court correctly concluded Defendant’s request for sentence modification

pursuant to § 3582(c)(1)(B) must fail. 6

                                           III.

      In his “Supplemental Brief in Support of Appeal,” Defendant invokes 18

U.S.C. § 3582(c)(2). That section authorizes a district court to modify a sentence

      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[,] . . . after considering the
      factors set forth in section 3553(a) to the extent that they are applicable,
      if such a reduction is consistent with applicable policy statements
      issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2). Defendant did not raise this argument in the district court,

nor did he discuss it in his brief other than to ask for relief pursuant to this statutory

provision.   “Where a new legal theory is raised for the first time on appeal,

frequently we have deemed the theory to be waived.” United States v. Lamirand,

      5
        The Supreme Court recently held Congress intended the FSA’s more lenient
penalties to apply to those offenders whose crimes preceded August 3, 2010, but who
are sentenced after that date. Dorsey v. United States, 132 S. Ct. 2321, 2331 (2012).
Because the district court sentenced Defendant prior to August 3, 2010, Dorsey does
not apply in this case.
      6
        In his brief, Defendant requested we remand to the district court to determine
drug quantity and for resentencing. Defendant cannot properly raise this argument
in a § 3582(c) motion. See United States v. Torres-Aquino, 334 F.3d 939, 941 (10th
Cir. 2003) (“An argument that a sentence was incorrectly imposed should be raised
on direct appeal or in a motion to vacate, set aside, or correct sentence pursuant to
28 U.S.C. § 2255.”).

                                            6
669 F.3d 1091, 1100 n.7 (10th Cir. 2012). We, however, “have recognized that

where the new theory was not ‘intentionally relinquished or abandoned in the district

court,’ but rather ‘the theory simply wasn’t raised before the district court, we

usually hold it forfeited’ and review it ‘under what substantively amounts to . . . the

plain error standard.’” Id. (citing Richison v. Ernest Grp., Inc., 634 F.3d 1123,

1127–28 (2011)). In this case, we give Defendant the benefit of the doubt and will

construe his argument as forfeited rather than waived. But “the failure to argue for

plain error and its application on appeal . . . surely marks the end of the road for an

argument for reversal not first presented to the district court.” Id. (citing Richison,

634 F.3d at 1131). Defendant has not asked us to review, nor has he argued in

support of, his § 3582(c)(2) request for relief. Accordingly, we decline to do so. 7

For the above stated reasons, Defendant’s motion to proceed IFP on appeal is granted




      7
         Even if we considered Defendant’s § 3582(c)(2) argument, we would still
affirm the district court. The United States Sentencing Commission promulgated
Amendment 750 to effectuate the FSA. Osborn, 679 F.3d at 1194. “The amendment
altered the drug-quantity tables in the Guidelines, increasing the required quantity
to be subject to each base offense level in a manner proportionate to the statutory
change to the mandatory minimums effectuated by the FSA.” Id. Amendment 759
made Amendment 750 retroactive, allowing certain defendants to seek sentence
reductions pursuant to § 3582(c)(2).” Id. Even though Amendment 750 is
retroactive, “the operation of the statutory minimum sentence . . . preclude[s] a
sentence reduction under 18 U.S.C. § 3582(c)(2). Id. at 1194 n.1. Accordingly,
because the district court sentenced Defendant pursuant to a statutory provision
rather than a Guideline range, a “reduction in the defendant’s term of imprisonment
is not authorized under 18 U.S.C. § 3582(c)(2).” U.S.S.G. § 1B1.10, cmt. n.1.

                                          7
and the district court’s decision is AFFIRMED.



                                     Entered for the Court,



                                     Bobby R. Baldock
                                     United States Circuit Judge




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