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

                                      TENTH CIRCUIT                               June 21, 2017

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

           Plaintiff - Appellee,                               No. 16-6335

v.                                                   (D.C. No. 5:13-CR-00138-F-6)

 ERLINDA RAMIREZ,                                           (W.D. Oklahoma)

           Defendant - Appellant.


                                   ORDER AND JUDGMENT *


Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.



       Defendant-Appellant Erlinda Ramirez, a federal prisoner proceeding pro se,1 filed

in the district court a motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2)

and Amendment 794. The district court dismissed the motion for lack of jurisdiction, and

Ms. Ramirez timely appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm

and also deny Ms. Ramirez’s request to proceed on appeal in forma pauperis.

       *
         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 This order and judgment is not binding precedent,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 Federal Rule Appellate
Procedure 32.1 and 10th Circuit Rule 32.1.
       1
        We construe Ms. Ramirez’s pro se filings liberally. See Smith v. Veterans
Admin., 636 F.3d 1306, 1310 (10th Cir. 2011).
                                   I.   BACKGROUND

       On August 21, 2013, a federal grand jury returned a superseding indictment

charging Ms. Ramirez with conspiring to distribute, and possess with intent to distribute,

controlled substances, in violation of 21 U.S.C. § 846 (Count 1); conspiring to launder

money, in violation of 18 U.S.C. § 1956(h) (Count 2); possessing methamphetamine with

the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Count 32); and aiding and

abetting money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2 (Counts

36–42). Ms. Ramirez pled guilty to Counts 1, 2, and 36–42, and the district court

dismissed Count 32.

       In its revised presentence investigation report (PSR), the United States Probation

Office recommended a guideline range of 262 to 327 months’ imprisonment, based on a

total offense level of 34 and a criminal history category of VI. Ms. Ramirez raised no

objections to the PSR. The district court held a sentencing hearing on September 3, 2014,

during which the court adopted the PSR and sentenced Ms. Ramirez to 240 months’

imprisonment on each count to run concurrently. Ms. Ramirez appealed, and we granted

defense counsel’s motion to withdraw and dismissed the appeal after finding Ms.

Ramirez raised only frivolous issues. See United States v. Ramirez, 613 F. App’x 711,

712–14, 712 n.1 (10th Cir. 2015) (unpublished). On July 15, 2015, Ms. Ramirez moved

for a sentence reduction based on Amendment 782. The district court denied the motion,

and Ms. Ramirez did not appeal.

       Then, on November 1, 2015, the United States Sentencing Commission issued

Amendment 794, which amended the commentary to United States Sentencing

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Guidelines § 3B1.2. The Sentencing Commission issued the amendment because it found

that minor role reductions under U.S.S.G. § 3B1.2 were being “applied inconsistently and

more sparingly than the Commission intended.” United States v. Quintero-Leyva, 823

F.3d 519, 522 (9th Cir. 2016) (quoting U.S.S.G. App. C. Amend. 794.)

       In response, Ms. Ramirez moved under 18 U.S.C. § 3582(c)(2) for a sentence

reduction based on Amendment 794. Ms. Ramirez maintained that Amendment 794 is a

clarifying amendment to U.S.S.G. § 3B1.2 that retroactively entitled her to a minor role

adjustment to her sentence. The district court disagreed and dismissed her motion for lack

of jurisdiction. The court explained that the Sentencing Commission has not made

Amendment 794 retroactive by listing it in U.S.S.G. § 1B1.10(d). And even if

Amendment 794 should be retroactive because it is a clarifying amendment, rather than a

substantive one, such an argument is not properly brought in a § 3582(c)(2) motion. Ms.

Ramirez timely appealed.

                             II.   STANDARD OF REVIEW

       “We review de novo a district court’s interpretation of the sentencing guidelines.”

United States v. Torres-Aquino, 334 F.3d 939, 940 (10th Cir. 2003). We also review de

novo a district court’s conclusion that it lacks jurisdiction, using the same legal standard

employed by the district court. See United States v. Gay, 771 F.3d 681, 685 (10th Cir.

2014) (“We review de novo the scope of a district court’s authority to resentence a

defendant in a § 3582(c)(2) proceeding.”).




                                              3
                                    III.   ANALYSIS

       Congress has granted jurisdiction to federal courts to reduce a previously imposed

sentence if the Sentencing Commission has lowered the applicable sentencing range and

“such a reduction is consistent with applicable policy statements issued by the Sentencing

Commission.” 18 U.S.C. § 3582(c)(2); see also United States v. Gay, 771 F.3d 681, 686

(10th Cir. 2014) (“A district court is authorized to modify a defendant’s sentence only in

specified instances where Congress has expressly granted the court jurisdiction to do

so.”). The applicable policy statement states that a reduction in the term of a defendant’s

sentence is “not consistent with this policy statement” and therefore not authorized under

§ 3582(c)(2) if “[n]one of the amendments listed in subsection (d) is applicable to the

defendant . . . .” U.S.S.G. § 1B1.10(a)(2); see Dillon v. United States, 560 U.S. 817, 821

(2010) (stating that U.S.S.G. § 1B1.10 is the applicable policy statement). Amendment

794 is not among the covered amendments listed in § 1B1.10(d) and thus has not been

made retroactive by the Sentencing Commission. See Dillon, 560 U.S. at 826 (noting that

Congress has charged the Commission “with determining whether and to what extent an

amendment will be retroactive” (citing 28 U.S.C. § 994(u))). Accordingly, Ms. Ramirez

is not entitled to relief under § 1B1.10. See United States v. Torres-Aquino, 334 F.3d 939,

940–41 (10th Cir. 2003) (holding that defendant was not entitled to a reduced sentence

because the amendment on which he relied was not listed as a retroactive amendment in

§ 1B1.10).

       Nonetheless, Ms. Ramirez insists that the district court could apply Amendment

794 retroactively because it is a clarifying amendment. But

                                             4
       whether an amendment to the guidelines is clarifying or substantive goes to
       whether a defendant was correctly sentenced under the guidelines in the
       first place, not to whether a correct sentence has subsequently been reduced
       by an amendment to the guidelines and can be modified in a proceeding
       under § 3582(c)(2).

Torres-Aquino, 334 F.3d at 941. And “[a]n 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.” Id. Because Ms. Ramirez proceeded exclusively

under § 3582(c)(2), we have no occasion to consider whether Amendment 794 applies

retroactively as a clarifying amendment. See id. Ms. Ramirez is ineligible for a sentence

reduction under 18 U.S.C. § 3582(c)(2) because Amendment 794 is not among the

covered amendments listed in U.S.S.G. § 1B1.10(d). The district court correctly

dismissed for lack of jurisdiction.

       Lastly, Ms. Ramirez moves to proceed on appeal in forma pauperis. Prisoners

seeking to proceed in forma pauperis must demonstrate “a financial inability to pay the

required fees and the existence of a reasoned, nonfrivolous argument on the law and facts

in support of the issues raised on appeal.” McIntosh v. U.S. Parole Comm’n, 115 F.3d

809, 812 (10th Cir. 1997) (internal quotation marks omitted). Ms. Ramirez’s motion is

denied because she is unable to show that her arguments on appeal are nonfrivolous.




                                             5
                               IV.   CONCLUSION

      The order of the Western District of Oklahoma is AFFIRMED, and Ms. Ramirez’s

motion to proceed in forma pauperis is DENIED.

                                          Entered for the Court


                                          Carolyn B. McHugh
                                          Circuit Judge




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