                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                      June 6, 2017
                      UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                   TENTH CIRCUIT                     Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 16-3350
 v.                                            (D.C. No. 2:10-CR-20101-CM-2)
                                                           (D. Kan.)
 RICKY D. WEBSTER,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, MURPHY, and MATHESON, Circuit Judges. **


      Defendant-Appellant Ricky Webster appeals from the district court’s

dismissal of his motion to reduce his sentence made pursuant to 18 U.S.C.

§ 3582(c)(2). United States v. Webster, No. 10-20101-02-CM, 2016 WL 4181294

(D. Kan. Aug. 8, 2016). Our jurisdiction arises under 28 U.S.C. § 1291, and we

affirm.


      *
        This order and judgment is not binding precedent, except under the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.
      In July 2010, about a month before the Fair Sentencing Act (“FSA”) was

enacted, Mr. Webster was charged with eight counts of drug and firearm-related

offenses. 1 R. 27–32. Because he possessed over 50 grams of crack cocaine, he

was subject to a 10-year mandatory minimum sentence under 21 U.S.C. §

841(b)(1)(A)(iii) (2006). Pursuant to Federal Rule of Criminal Procedure

11(c)(1)(C), Mr. Webster pled guilty to Count One (conspiracy to manufacture

and possess with the intent to distribute more than 50 grams of crack) and to

Count Six (possessing a firearm in furtherance of a drug-trafficking crime). 1 R.

44. He also agreed to a sentence of 180 months of imprisonment and five years’

supervised release. Id. at 50. Mr. Webster moved to reduce his sentence under

18 U.S.C. § 3582(c)(2) to conform with the FSA’s more lenient penalties for

offenses involving more than 50 grams of crack cocaine. See generally Dorsey v.

United States, 567 U.S. 260, 265–70 (2012). The district court concluded that it

lacked jurisdiction to consider the motion because Mr. Webster’s sentence was

not “based on” the Sentencing Guidelines and dismissed the motion. Webster,

2016 WL 4181294, at *3.

      We review the district court’s resolution of Mr. Webster’s motion to reduce

his sentence under § 3582(c)(2) for an abuse of discretion, but in so doing review

the district court’s interpretation of 18 U.S.C. § 3582(c)(2) de novo. United

States v. Sharkey, 543 F.3d 1236, 1238 (10th Cir. 2008). A district court may

reduce a defendant’s sentence if the defendant was originally “sentenced to a term

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of imprisonment based on a sentencing range that has subsequently been lowered

by the Sentencing Commission.” § 3582(c)(2). In United States v. Graham, we

held that we were bound by Justice Sotomayor’s concurrence in Freeman v.

United States, 564 U.S. 522, 534–44 (2011). 704 F.3d 1275, 1277–78 (10th Cir.

2013). We therefore concluded that when a plea agreement “does not use or

employ a Guideline sentencing range, the defendant is not entitled to the benefit

of the amendment.” Id. at 1278 (citation and internal quotation marks omitted).

      The district court did not abuse its discretion by dismissing Mr. Webster’s

motion to reduce his sentence. The plea agreement does not reference the

guidelines other than to expressly disclaim their use in imposing Mr. Webster’s

sentence. 1 R. 51. Mr. Webster’s sentence is therefore not based on the

guidelines, and he is not entitled to a sentence reduction. See Freeman, 564 U.S.

at 539 (Sotomayor, J. concurring).

      AFFIRMED.

                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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