                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   June 12, 2013
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 12-1421
 MANUEL GUILLERMO CARRILLO,                   (D.C. No. 1:99-CR-00300-MSK-1)
                                                          (D. Colo.)
          Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, ANDERSON and BALDOCK, Circuit Judges.



      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, submitted without oral argument.

      Defendant Manuel Guillermo Carrillo appeals from the district court’s

order denying his motion for a reduction of his sentence of imprisonment pursuant


      *
        This order and judgment is not binding precedent, except under the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.
to 18 U.S.C. § 3582(c)(2). Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

                                           I

      Carrillo was convicted more than a decade ago on charges related to the

distribution of controlled substances, including crack cocaine. See United States

v. Hinojosa Gonzalez, 68 F. App’x 918, 921 (10th Cir. 2003) (unpublished). At

sentencing, the district court calculated the sentencing range based on the drugs

actually seized and purchased during the investigation into Carrillo’s drug

trafficking activities: 1778.45 grams of methamphetamine, 315.5 grams of

cocaine, and 51.55 grams of crack cocaine. ROA Vol. I at 19. The district court

calculated a base offense level of 34 based on the quantities of drugs involved.

Pursuant to other provisions of the Sentencing Guidelines, that was increased six

levels for a total offense level of 40.

      Combined with Carrillo’s criminal history category of VI, this resulted in a

sentencing range of 360 months to life. Id. Carrillo was sentenced to 720 months

imprisonment. Id. at 20. We affirmed this conviction and sentence in Hinojosa

Gonzalez. And we later denied Carrillo’s request for a certificate of appealability

to challenge the district court’s denial of his petition for habeas corpus. See

United States v. Carrillo, 161 F. App’x 790 (10th Cir. 2006) (unpublished).




                                          -2-
      In 2008, Carrillo, acting pro se, 1 filed a motion seeking to reduce his

sentence of imprisonment pursuant to 18 U.S.C. § 3582(c)(2). See ROA Vol. I at

24. Carrillo pointed to an amendment to the Sentencing Guidelines that reduced

the severity of penalties for crimes involving crack cocaine. The government

argued that Carrillo was not entitled to relief because “notwithstanding the

guideline amendment, the amendment does not have the effect of lowering the

defendant’s guideline range.” Id. at 55. The district court denied Carrillo’s

motion following a hearing. We dismissed as untimely Carrillo’s appeal of the

district court’s decision. See United States v. Carrillo, No. 09-1007 (10th Cir.

March 5, 2009). 2

      In 2012, Carrillo, again acting pro se, filed another motion seeking a

reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2). See ROA Vol. I at

7. He pointed to more recent amendments to the Sentencing Guidelines that had

again reduced the severity of penalties for offenses involving crack cocaine. He

also alleged various constitutional violations connected to his conviction and

sentencing.


      1
       The district court appointed counsel, who adopted Carrillo’s argument.
See ROA Vol. I at 30-31.
      2
         We also subsequently issued an order denying a certificate of
appealability that Carrillo requested to challenge the district court’s denial of a
habeas corpus petition that argued he received ineffective assistance of counsel
related to his 18 U.S.C. § 3582(c)(2) motion. United States v. Carrillo, 389 F.
App’x 861 (10th Cir. 2010).

                                         -3-
      The government again argued that the sentencing range would not change

even considering the amendments. Id. at 21. Although the Sentencing Guidelines

had been amended since Carrillo filed his 2008 motion, the government did not

provide the district court with a new calculation of the appropriate sentencing

range—instead, it simply sought to incorporate by reference the facts from its

responses to Carrillo’s 2008 motion. Id. at 20. The Probation Office also filed an

addendum to its presentence report in which it represented that the sentencing

range remained the same under the newly amended Sentencing Guidelines. See

ROA Vol. II at 6-7.

      Without holding a hearing, the district court issued a docket text order

denying Carrillo’s motion. The order said:

             Most of the arguments raised in the instant motion are either:
             (i) not properly cognizable in [a] motion under § 3582 (e.g.
             arguments that his convictions should be vacated or that “Pre-
             Booker” sentencing procedures were unlawful, etc.), and not
             cognizable under 28 U.S.C. § 2255 without Mr. Carrillo first
             obtaining leave from the 10th Circuit to assert a successive §
             2255 petition; or (ii) arguments substantively identical to those
             raised by Mr. Carrillo in a prior § 3582 motion that the Court
             denied on its merits. Although Congress has since passed the
             Fair Sentencing Act of 2010 (P.L. 111–220) and the
             Sentencing Guidelines have been amended accordingly, that
             change does not materially alter the Guideline calculation
             applicable to Mr. Carrillo; even under the amended Guidelines,
             Mr. Carrillo’s advisory Guideline range is identical to the
             range he faced at the time of initial sentencing. Without a
             change in the applicable Guideline range, Mr. Carrillo is not
             eligible for relief under § 3582. See[,] e.g., U.S. v. McGee,
             615 F.3d 1287, 1291 (10th Cir. 2010). Accordingly, Mr.
             Carrillo’s motion is denied.

                                     -4-
ROA Vol. I at 5-6. Carrillo now appeals. He is now represented by counsel.

                                         II

      Under 18 U.S.C. § 3582(c), district courts typically “may not modify a term

of imprisonment once it has been imposed.” This rule, however, is not without

exceptions. One is that:

             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
             pursuant to 28 U.S.C. § 944(o), upon motion of the defendant
             . . . the court may reduce the term of imprisonment, after
             considering the factors set forth in section 3553(a) to the
             extent 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). This provision “does not authorize a sentencing or

resentencing proceeding,” but instead “provides for the modification of a term of

imprisonment by giving courts the power to reduce an otherwise final sentence in

circumstances specified by the Commission.” Dillon v. United States, 130 S. Ct.

2683, 2690 (2010) (quotations omitted). The Sentencing Commission’s policy

statements “are binding on district courts and limit their authority to grant

motions for reductions of sentences.” United States v. McGee, 615 F.3d 1287,

1292 (10th Cir. 2010).

      Therefore, before a district court even decides whether a modification is

warranted, “§ 3582(c)(2) requires the court to follow the Commission’s


                                         -5-
instructions in § 1B1.10 to determine the prisoner’s eligibility for a sentence

modification and the extent of the reduction authorized.” Dillon, 130 S. Ct. at

2691. Relevant here, U.S.S.G. § 1B1.10 does not permit courts to reduce

sentences when the amendment to the Sentencing Guidelines that the defendant

relies on “does not have the effect of lowering the defendant’s applicable

guideline range.” See U.S.S.G. § 1B1.10(a)(2)(B) (2011). The district court held

that it lacked authority to modify Carrillo’s sentence because the applicable

sentencing range would not change even if calculated under the amended

Sentencing Guidelines. We review de novo the scope of the district court’s

authority in a § 3582(c)(2) proceeding. McGee, 615 F.3d at 1290.

      To determine whether the district court properly determined that it had no

authority to modify Carrillo’s sentence, we must consider the applicable

sentencing range under the 2011 Sentencing Guidelines, which were in effect

when Carrillo filed his motion. 3 Carrillo was sentenced under U.S.S.G. § 2D1.1,

which requires combining all of the drugs included in his sentencing to determine

a base offense level. See § 2D1.1, application note 6 (2011). To add quantities

of different types of drugs, the Sentencing Guidelines provide a method for

converting the quantities of these drugs into the equivalent quantities of



      3
        We note that the Sentencing Commission has made the applicable
amendments retroactive. See U.S.S.G. § 1B1.10(c) (2011); see also United States
v. Graham, 704 F.3d 1275, 1276 (10th Cir. 2013).

                                         -6-
marijuana. See § 2D1.1, application note 10 (2011).

      At the outset, we note that it does not appear the government ever provided

the district court with a full and accurate calculation under the amended

Sentencing Guidelines. In its response to Carrillo’s § 3582(c)(2) motion, the

government cited to, and incorporated by reference, its response to the motion

Carrillo filed in 2008. However, the drug equivalency tables had changed since

Carrillo had filed his 2008 motion seeking modification of his sentence. Under

the version of the Sentencing Guidelines in effect when Carrillo filed his first

§ 3582 motion, crack cocaine—for the purposes of Carrillo’s

sentence 4—converted to marijuana at a rate of 14 kilograms of marijuana per

gram of crack cocaine. See U.S.S.G. § 2D1.1, application note 10(D)(i)(II)

(2007). Under the version of the Sentencing Guidelines in effect when Carrillo

filed the motion at issue here, crack cocaine converted to marijuana at a rate of

3.571 kilograms of marijuana per gram of crack cocaine. See U.S.S.G. § 2D1.1,

application note 10(D) (2011). Our review of the record does not reveal any

document filed by the government in district court that included a new calculation



      4
         Under the 2007 version of the Sentencing Guidelines, the rate for
converting crack cocaine to marijuana was not constant. Instead, it varied with
the amount of crack cocaine at issue at sentencing. Standing alone, the amount of
crack cocaine attributed to Carrillo, 51.557 grams, represented a base offense
level of 30. See § 2D1.1(c)(5) (2007). Crack cocaine at this base offense level
was converted to marijuana at the rate of 14 kilograms marijuana to one gram of
cocaine base. See U.S.S.G. § 2D1.1, application note 10(D)(i)(II) (2007).

                                         -7-
to account for this change.

      While the Probation Office filed an addendum to its PSR that asserted that

the applicable sentencing range did not change, its calculations also appear, at the

very least, incomplete. The only marijuana equivalency total mentioned in the

addendum was the total used during the initial sentencing. The addendum did not

include any calculations using the new conversion rates, instead stating that

“[p]ursuant to the 2011 edition of the Guidelines Manual, there is no reduction for

cases involving cocaine base and one or more other controlled substances, a

reduction afforded in the Probation Office’s 2008 response to the defendant’s

reduction motion.” ROA Vol. II at 6.

      On appeal, however, the government has provided us with full calculations

that demonstrate that the applicable sentencing range would not have changed

under the 2011 version of the Sentencing Guidelines. Even taking into account

the lower conversion rate for crack cocaine, the drug quantities included in the

sentencing combined for a total marijuana equivalency amount of 3,804.112647

kilograms. See Aplee. Br. at 16. Sentences for crimes involving more than 3,000

kilograms but less than 10,000 kilograms of marijuana result in a base offense

level of 34—the same base offense level used at the initial sentencing. See

U.S.S.G. § 2D1.1(c)(3) (2011); ROA Vol. I at 19. That base is, like at the initial

sentencing, increased by six levels pursuant to other provisions of the manual.

ROA Vol. I at 19. Combined with Carrillo’s criminal history category of VI, it

                                         -8-
results in the same sentencing range as used at the initial sentencing: 360 months

to life. See U.S.S.G. ch. 5, pt. A (2011).

      Carrillo has not raised any arguments disputing this calculation. Nor did

Carrillo provide us with his own calculations that would show the sentencing

range would differ under the 2011 version of the Sentencing Guidelines. 5 And

while we acknowledge Carrillo may not have had notice of what calculations the

government was using to justify its statements in the district court, 6 he has not

filed a reply brief challenging the calculations the government has provided to us

on appeal. Because the applicable sentencing range would not change even under

the 2011 verison of the Sentencing Guidelines, we agree with the district court

that it did not have the authority to consider a § 3582(c)(2) motion for reduction.

                                         III

      Carrillo, however, focuses much of his brief on what he alleges was a

procedural error made by the district court: the court’s failure to record in detail

its own findings as to whether the applicable sentencing range would change

under the amended version of the Sentencing Guidelines. It is not entirely clear

      5
         Moreover, Carrillo’s calculations in his pro se motion filed in the district
court did not account for the other drugs considered as part of his sentencing. See
ROA Vol. I at 13.
      6
         Indeed, Carrillo raised the issue in his opening brief of how the
government arrived at the conversion rate of 14 kilograms of marijuana per gram
of crack cocaine that was used in the documents the government incorporated by
reference in district court. As explained above, this was the conversion rate for
Carrillo’s sentence as provided by the 2007 version of the Sentencing Guidelines.

                                         -9-
what procedural protections defendants are entitled to when the district court is

deciding whether it has the authority to consider a § 3582(c)(2) motion, because,

as above, this does not constitute a sentencing or resentencing proceeding. But

even if we were to assume the district court committed a procedural error, the

error was harmless. As explained in Part II, the applicable sentencing range was,

in fact, the same under the amended Sentencing Guidelines. The district court

therefore lacked any authority to modify Carrillo’s sentence. 7 We AFFIRM the

decision of the district court. 8


                                               Entered for the Court


                                               Mary Beck Briscoe
                                               Chief Judge




       7
         Because we would affirm the district court even under harmless-error
analysis, we need not resolve the dispute between the parties as to the proper
standard of review.
       8
         Carrillo’s counsel, at Carrillo’s request, also incorporates by reference
other arguments made by Carrillo in his pro se motion filed in the district court.
We will not consider these arguments on appeal. “Incorporating by reference
portions of lower court or agency briefs or pleadings is disapproved and does not
satisfy the requirements of Fed. R. App. P. 28(a) and (b).” 10th Cir. R. 28.4; see
also United States v. Gordon, 710 F.3d 1124, 1137 n.15 (10th Cir. 2013)
(“Litigants who premise their appellate arguments on the incorporation by
reference of arguments that they have advanced in their trial court papers, or
other materials, do so at their peril. It is beyond peradventure that such a briefing
technique is disfavored.”).

                                        -10-
