                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 February 5, 2016
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                     No. 15-6160
                                               (D.C. No. 5:92-CR-00209-D-1)
 RAFAEL ANTONIO HERRERA,                              (W.D. of Okla.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, HARTZ, and MORITZ, Circuit Judges. **


      Rafael A. Herrera appeals the district court’s denial of his motion for a

sentence reduction under 18 U.S.C. § 3582(c)(2). Section § 3582(c)(2) allows a

court to modify a term of imprisonment where the sentencing range has been

lowered. Herrera acknowledges that his guidelines range has not been lowered,

but instead claims that his sentence violates the Eighth Amendment. We have no


      *
         This order and judgment is not binding precedent except under the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 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); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
authority to grant relief on Herrera’s constitutional claim. As we explained in

United States v. Gay, 771 F.3d 681 (10th Cir. 2014), district courts have limited

jurisdiction under § 3582(c)(2) to reduce sentences. That jurisdiction does not

reach collateral attacks on a defendant’s sentence, whether on constitutional

grounds or otherwise.

      In 1992, Herrera pleaded guilty to conspiring (1) to possess with intent to

distribute and (2) to distribute cocaine base, in violation of 21 U.S.C. § 846. The

statutory imprisonment range was ten years to life. 21 U.S.C. § 841(b)(1)(A).

      The second revised presentence investigation report (PSR) recommended a

base offense level of 40, considering 13.5 kilograms of cocaine base, 0.25

kilograms of cocaine powder, and one pound of marijuana (270,050.45 kilograms

of marijuana equivalent in total). The PSR recommended a two-level

enhancement for possessing a firearm, a four-level enhancement for a leadership

role, and a two-level enhancement for obstruction of justice, for a total offense

level of 48. The PSR calculated three criminal history points, placing Hererra in

a criminal history category of II. Based on a total offense level of 48 and a

criminal history of II, the guidelines range was life imprisonment. Herrera raised

multiple objections to the PSR, including that the statutory and guidelines

provisions for punishment were excessive and therefore unconstitutional.

      The district court sentenced Herrera to life imprisonment. Herrera has

since become a frequent filer to the federal judiciary. He first directly appealed

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the sentence, arguing among other things that the guidelines range violated the

Fifth and Eighth Amendments. United States v. Herrera, 16 F.3d 418 (10th Cir.

1994) (unpublished table opinion). In 1997, 2000, and 2003, Herrera filed

motions pursuant to 28 U.S.C. § 2255, in the latter two motions raising arguments

related to Apprendi v. New Jersey, 530 U.S. 466 (2000). The district court denied

these motions.

      Then in 2005, Herrera filed a motion pursuant to 18 U.S.C. § 3582(b)(2)(B)

to modify his sentence based on Apprendi and United States v. Booker, 543 U.S.

220 (2005). The district court denied his motion, and this court dismissed the

appeal as untimely. United States v. Herrera, 178 F. App’x 830 (10th Cir. 2006).

Herrera then filed a motion for a writ of audita querela under the All Writs Act in

2006 arguing that his life sentence is unconstitutional, citing Apprendi and

Booker. The district court concluded it lacked jurisdiction, because § 2255 was

the exclusive remedy, but even if it had jurisdiction, it would deny Herrera’s

motion because Apprendi and Booker do not apply retroactively. See United

States v. Herrera, 216 F. App’x 809 (10th Cir. 2007). We construed his filing as

a motion under § 2255 and denied authorization to file a successive § 2255

motion.

      In 2008, Herrera filed a motion pursuant to 18 U.S.C. § 3582(c)(2) seeking

a sentence reduction based on Amendment 706, which modified the Drug

Quantity Table downward two levels for cocaine base. The district court denied

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the motion and we affirmed, as even a two-level decrease in his offense level,

combined with a criminal history category of II, would still result in a life

sentence. United States v. Herrera, 291 F. App’x 886 (10th Cir. 2008).

      At issue here is Herrera’s latest motion for a sentence reduction pursuant to

§ 3582(c)(2) based on Amendment 782. That Amendment “reduces by two levels

the [base] offense levels assigned” to certain drug offenses, including distribution

and possession charges. U.S. Sentencing Guidelines Manual app. C., amend. 782

(Supp. 2014).

      Herrera argues that the development of federal sentencing law since 1993

makes his sentence grossly disproportionate and therefore unconstitutional.

Herrera, however, acknowledges that we have no authority to hear constitutional

challenges in § 3582(c)(2) proceedings. Gay, 771 F.3d at 683. Such a challenge

is a collateral attack that must be raised in a § 2255 proceeding (which he has

already done three times). See United States v. Price, 438 F.3d 1005, 1006–07

(10th Cir. 2006); United States v. Smartt, 129 F.3d 539, 542–43 (10th Cir. 1997).

      “A judge’s resentencing authority is a creation of statute . . . .” United

States v. Pedraza, 550 F.3d 1218, 1220 (10th Cir. 2008). The district court may

only modify a defendant’s sentence “where Congress has expressly granted the

court jurisdiction to do so.” Price, 438 F.3d at 1007. Under § 3582(c), a court

may only grant a sentence reduction for a defendant whose sentencing range “has

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

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§ 3582(c)(2). As Herrera concedes, applying Amendment 782 would not change

his applicable guidelines range. We do not have jurisdiction under § 3582(c) to

look outside this narrow issue, which ends the matter.

      The district court did not err in finding that Herrera was ineligible for a

sentence modification under § 3582(c)(2). We affirm the district court’s order

denying relief.

                                               ENTERED FOR THE COURT

                                               Timothy M. Tymkovich
                                               Chief Judge




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