                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                       August 11, 2009
                      UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                       TENTH CIRCUIT


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

 v.                                                           No. 09-3031
                                                  (D. Ct. No. 6:06-CR-10213-JTM-1)
 CHESTER J. GOUDEAU,                                           (D. Kan.)

               Defendant - Appellant.


                              ORDER AND JUDGMENT*


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance 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.

       Defendant-appellant Chester Goudeau appeals the district court’s memorandum

and order denying his amended motion to reduce his sentence pursuant to 18 U.S.C. §

3582(c)(2). In this pro se appeal, Mr. Goudeau argues that the district court erred when it

enforced the appellate waiver provision in his plea agreement. Because Mr. Goudeau’s


       *
        This order and judgment is not binding precedent except under the doctrines of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.
sentence was imposed as a result of a binding plea agreement under Federal Rule of

Criminal Procedure 11(c)(1)(C) and not through consideration of the United States

Sentencing Guidelines (“Guidelines”), the district court did not have jurisdiction to

consider Mr. Goudeau’s motion. We therefore REMAND the case to the district court for

the purpose of dismissing Mr. Goudeau’s motion for lack of jurisdiction.

                                   I. BACKGROUND

       In September 2006, Mr. Goudeau was indicted and charged with one count of

possession with intent to distribute crack cocaine, one count of possession with intent to

distribute cocaine powder, one count of possession of a handgun in furtherance of a drug

trafficking crime, and one count of possession of a firearm by a felon. On January 29,

2007, Mr. Goudeau entered into a plea agreement pursuant to Rule 11(c)(1)(C) of the

Federal Rules of Criminal Procedure. Mr. Goudeau agreed to plead guilty to Count One,

which charged possession with intent to distribute approximately 232.2 grams of a

mixture of a substance containing a detectable amount of crack cocaine, in violation of 21

U.S.C. § 841(a) and (b)(1)(A). The government agreed to dismiss the other counts of the

indictment. The parties also agreed to a sentence of 216 months. The plea agreement

included a provision under which Mr. Goudeau waived his right “to appeal or collaterally

attack any matter in connection with this prosecution, conviction and sentence.”

       At the plea hearing, the district court thoroughly reviewed the plea agreement with

Mr. Goudeau, including the waiver of his right to appeal his conviction and sentence. Mr.

Goudeau confirmed that he understood the maximum sentence that could be imposed, the

                                            -2-
parties’ agreement to a sentence of 216 months in prison, and the waiver of his right to

appeal. The probation office then prepared a Presentence Report (“PSR”), which

recommended a sentencing range of 168 to 210 months. The parties subsequently

amended the plea agreement to state that a 192-month sentence (sixteen years) was

appropriate. On April 25, 2007, the district court accepted the plea agreement and

sentenced Mr. Goudeau to sixteen years in prison. He did not file a direct appeal. On

May 5, 2008, Mr. Goudeau filed an amended motion for reduction of sentence pursuant to

18 U.S.C. § 3582(c)(2). He argued that his sentence should be reduced because the

Guidelines had been amended to reduce the Guidelines range for his offense. On January

15, 2009, the district court issued a Memorandum and Order enforcing the appellate

waiver and denying Mr. Goudeau’s amended motion for a reduction of sentence. Mr.

Goudeau filed a timely notice of appeal.

                                    II. DISCUSSION

       A district court only has jurisdiction to modify a previously imposed sentence

when specifically authorized to do so by a statute. See United States v. Price, 438 F.3d

1005, 1007 (10th Cir. 2006). Under 18 U.S.C. § 3582(c)(2), a district court has

jurisdiction to modify the sentence 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 . . . .” Thus, for the district court to have jurisdiction, the

sentence must have been “based on a sentencing range.” A sentence imposed as a result

of a binding plea agreement under Rule 11(c)(1)(C), however, is not a sentence based on

                                            -3-
a sentencing range. United States v. Trujeque, 100 F.3d 869, 871 (10th Cir. 1996).1

Rather, the sentence is the product of a specific agreement that is binding on the court.

Because Mr. Goudeau’s sentence was not “based on a sentencing range,” 18 U.S.C. §

3582(c)(2) does not apply, and the district court did not have jurisdiction to entertain Mr.

Goudeau’s motion.2

                                      III. CONCLUSION

       For the foregoing reasons, we REMAND to the district court for the purpose of




       1
        Trujeque involved Rule 11(e)(1)(C), the provisions of which are currently found
in Rule 11(c)(1)(C).
       2
           This interpretation is consistent with several unpublished opinions in which this
court has held that a Rule 11(c)(1)(C) plea agreement for a particular term of
imprisonment does not establish a sentence based on the Guidelines. See, e.g., United
States v. Gonzalez, 308 Fed. App’x 251, 252 (10th Cir. Jan. 16, 2009); United States v.
Graham, 304 Fed. App’x 686, 688 (10th Cir. Dec. 22, 2008); United States v. Burks, 301
Fed. App’x 781, 782 (10th Cir. Dec. 5, 2008).
        We note that in this case, the original plea agreement stipulated to a longer
sentence (216 months); after the PSR established a Guidelines range of 168 to 210
months, the parties amended the plea to agree to a lesser sentence. Goudeau has not
argued that the parties’ modification of the agreed-upon sentence following the
preparation of the PSR caused his sentence to be “based on a sentencing range,” so we
need not address the merits of such an argument. In any event, as the district court
reasoned, Mr. Goudeau’s motion would fail based on his valid waiver of his appellate
rights.

                                               -4-
dismissing Mr. Goudeau’s motion for lack of jurisdiction.



                                         ENTERED FOR THE COURT,



                                         Deanell Reece Tacha
                                         Circuit Judge




                                          -5-
