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

                             FOR THE TENTH CIRCUIT                           May 20, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                        No. 15-8130
                                                (D.C. No. 1:11-CR-00196-ABJ-4)
FRANCISCO RODRIGUEZ-VEJAR,                                  (D. Wyo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, HOLMES, and MORITZ, Circuit Judges.
                  _________________________________

      Francisco Rodriguez-Vejar pled guilty to possessing and distributing

methamphetamine in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1),

(b)(1)(B), and 846. Based on the terms of his Fed. R. Crim. P. 11(c)(1)(C) plea

agreement, the district court imposed a 102-month prison sentence.1 But after the

Sentencing Commission lowered by two levels most of the base offense levels


      *
         After examining Rodriguez-Vejar’s brief 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is not binding precedent, except under the doctrines of law of the case, res judicata,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. See
Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
       1
         Under Rule 11(c)(1)(C), if the defendant and the government agree to a
specific sentence in the plea agreement, “such a recommendation or request binds the
court once the court accepts the plea agreement.”
provided in the Guidelines’ Drug Quantity Table, see U.S.S.G. app. C, amend. 782,

Rodriguez-Vejar filed a motion under 18 U.S.C. § 3582(c)(2) seeking a reduced

sentence. The district court dismissed the motion, concluding that Rodriguez-Vejar’s

original sentence wasn’t based on a Guidelines sentencing range. See § 3582(c)(2)

(permitting a court to modify a defendant’s sentence if it was “based on a sentencing

range that has subsequently been lowered by the Sentencing Commission”).

Appearing pro se, Rodriguez-Vejar appeals.2

      Although a defendant may be eligible for a sentence reduction if his Rule

11(c)(1)(C) plea agreement “is based on a Guideline[s] sentencing range that is

retroactively amended . . .[,] when the plea deal does not ‘use’ or ‘employ’ a

Guideline[s] sentencing range, the defendant is not entitled to the benefit of the

amendment.” United States v. Graham, 704 F.3d 1275, 1278 (10th Cir. 2013) (citing

Freeman v. United States, 564 U.S. 522, 538-42 (2011) (Sotomayor, J., concurring)).3

      Here, Rodriguez-Vejar’s plea agreement didn’t use or employ a Guidelines

sentencing range. Indeed, the agreement references the Guidelines only once, noting

that Rodriguez-Vejar “has been advised of § 1B1.3 of the Sentencing Guidelines

regarding use of relevant conduct in establishing sentence and has read the

advisement regarding supervised release as stated in this Plea Agreement.” R. vol. 2,


      2
         We liberally construe Rodriguez-Vejar’s pro se filings, but it’s not our role to
act as his advocate. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
       3
         We explained in Graham that “Justice Sotomayor’s concurrence [in
Freeman] is the narrowest grounds of decision and represents the Court’s holding.”
704 F.3d at 1278 (collecting cases from seven federal appellate courts concluding the
same).

                                           2
61. But the plea agreement includes no mention of an applicable sentencing range

when recommending a sentence to the court. Instead, it merely states, “Pursuant to

[Rule] 11(c)(l)(C), the parties have agreed that a sentence of 102 months is an

appropriate and just disposition of this case.” Id. at 62.

       Because the agreement doesn’t reference a specific Guidelines range when

recommending a sentence, we conclude the agreement doesn’t use or employ a

Guidelines sentencing range. See United States v. Beltran, No. 15-8122, 2016 WL

851761, at *2 (10th Cir. Mar. 4, 2016) (unpublished). Thus, Rodriguez-Vejar isn’t

“entitled to the benefit of” Amendment 782, and the district court correctly dismissed

his § 3582(c)(2) motion. See Graham, 704 F.3d at 1278-79. Accordingly, we affirm.


                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




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