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

                             FOR THE TENTH CIRCUIT                             January 27, 2016
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 15-6187
                                                    (D.C. No. 5:11-CR-00154-M-10)
SHAWN PAUL WILSON,                                           (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.
                 _________________________________

       Shawn Paul Wilson appeals from the denial of his motion to reduce his sentence

under Amendment 782 of the U.S. Sentencing Guidelines (“U.S.S.G.”) and 18 U.S.C.

§ 3582(c). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




       *
         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 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 This order and judgment is not binding precedent,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 consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
                                   I. BACKGROUND

                         A. Conviction and Original Sentence

       On August 9, 2011, Mr. Wilson pled guilty to conspiring to distribute

methamphetamine in violation of 21 U.S.C. § 846 from approximately September 2010

to April 2011. At his sentencing hearing on April 5, 2012, the district court determined

Mr. Wilson’s sentencing guideline range was 120-50 months of imprisonment based on

the 2011 U.S.S.G., which was effective at the time of sentencing.1 The court imposed a

downward-variant sentence of 60 months in prison.

B. Amendment 782 and the Denial of Mr. Wilson’s Motion to Reduce His Sentence

       The Sentencing Commission subsequently promulgated Amendment 782,

effective November 1, 2014, which provides a retroactive two-offense-level reduction for

certain drug offenses. Mr. Wilson moved for a sentence reduction under 18 U.S.C.

§ 3582(c), contending application of Amendment 782 would reduce his guideline range

from 120-50 (“original range”) to 100-25 months (“amended range”).

       Under 18 U.S.C. § 3582(c) (“Modification of an Imposed Term of

Imprisonment”), a court must follow the instructions in U.S.S.G § 1B1.10 to determine a

“prisoner’s eligibility for a sentence modification and the extent of the reduction

authorized.” Dillon v. United States, 560 U.S. 817, 827 (2010). At issue in district court

was which § 1B.10 should apply: the 2010 version, which was in effect when Mr.


       1
        See U.S.S.G. § 1B1.11(a) (“The court shall use the Guidelines Manual in effect
on the date that the defendant is sentenced.”)



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Wilson committed the offense, or the 2014 version, which was in effect when Mr. Wilson

moved for a reduced sentence.

       The United States contended the 2014 version should apply because the

Guidelines Manual instructs that “the court shall use the version of this policy statement

that is in effect on the date on which the court reduces the defendant’s term of

imprisonment as provided by 18 U.S.C. § 3582(c)(2).” § 1B.10 cmt. n.1 (2014). It

argued Mr. Wilson was ineligible for a sentence reduction under the 2014 version

because (1) his original sentence of 60 months was less than his amended range of 100-

25 months, see § 1B1.10(b)(2)(A) (2014), and (2) the original variance was not based on

substantial assistance to the United States, see § 1B1.10(b)(2)(B) (2014).

       Mr. Wilson contended the 2010 version should apply instead. He argued that,

under this version, he was eligible for a reduction below the amended range comparable

to the reduction he received below his original range. See § 1B1.10(b)(2)(B) (2010).

Because the 2014 version eliminated the possibility of such a comparable reduction, Mr.

Wilson argued application of the 2014 version would violate the Ex Post Facto Clause of

the Constitution, art. I, § 9, cl. 3.

       The district court denied Mr. Wilson’s motion. The court applied the 2014 version

of § 1B.10 and determined his new total offense level under Amendment 782 was 25.

Applying his original criminal history category of V to his new total offense level, it

calculated a revised guideline range of 100 to 125 months. The court concluded Mr.

Wilson was ineligible for a sentence reduction under the 2014 version of § 1B.10 because

(1) his original sentence of 60 months was less than the 100-month minimum of the


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revised guideline range, see § 1B1.10(b)(2)(A) (2014), and (2) the original variance was

not based on substantial assistance to the United States, see § 1B1.10(b)(2)(B) (2014).

      The district court rejected Mr. Wilson’s argument that application of the 2014

version of § 1B.10 violated the Ex Post Facto Clause, quoting United States v. Diggs,

768 F.3d 643 (7th Cir. 2014): “[b]y nature, a § 3582(c)(2) proceeding to reduce a

sentence does not have any bearing on the ex post facto clause, because it cannot increase

a punishment.” 768 F.3d at 645.

                                   II. DISCUSSION

                    A. Standard of Review and Legal Background

      “We review de novo the district court’s interpretation of a statute or the sentencing

guidelines.” United States v. Sharkey, 543 F.3d 1236, 1238 (10th Cir. 2008) (quotations

omitted).

      Under 18 U.S.C. § 3582(c)(2),

      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. 994(o), upon
      motion of the defendant or the Director of the Bureau of Prisons, or on its
      own motion, the court may reduce the term of imprisonment, after
      considering the factors set forth in section 3553(a) to the extent that they
      are applicable, if such a reduction is consistent with applicable policy
      statements issued by the Sentencing Commission.

The applicable policy statement issued by the Sentencing Commission is U.S.S.G.

§ 1B1.10, entitled “Reduction in Term of Imprisonment as a Result of Amended

Guideline Range (Policy Statement).”




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       Section 3582 “establishes a two-step inquiry.” Dillon, 560 U.S. at 826. “At step

one, § 3582(c)(2) requires the court to follow the Commission’s instructions in § 1B1.10

to determine the prisoner’s eligibility for a sentence modification and the extent of the

reduction authorized.” Id. at 827. “At step two of the inquiry, § 3582(c)(2) instructs a

court to consider any applicable § 3553(a) factors and determine whether, in its

discretion, the reduction authorized by reference to the policies relevant at step one is

warranted in whole or in part under the particular circumstances of the case.” Id.

       On appeal, Mr. Wilson argues that the district court violated the Ex Post Facto

Clause because it applied the 2014 rather than the 2010 version of § 1B1.10(b)(2) at step

one.

1. 2010 Version of § 1B1.10

       The 2010 version provides:

       (a) Authority.

              (1) In general. In a case in which a defendant is serving a term of
              imprisonment, and the guideline range applicable to that defendant
              has subsequently been lowered as a result of an amendment to the
              Guidelines Manual listed in subsection (c) below, the court may
              reduce the defendant’s term of imprisonment as provided by 18
              U.S.C. § 3582(c)(2). As required by 18 U.S.C. § 3582(c)(2), any
              such reduction in the defendant’s term of imprisonment shall be
              consistent with this policy statement.

              (2) Exclusions. A reduction in the defendant’s term of imprisonment
              is not consistent with this policy statement and therefore is not
              authorized under 18 U.S.C. § 3582(c)(2) if—

                     (A) None of the amendments listed in subsection (c) is
                         applicable to the defendant; or




                                             -5-
                   (B) An amendment listed in subsection (c) does not have the
                       effect of lowering the defendant’s applicable guideline
                       range
             ...
      (b) Determination of reduction in term of imprisonment.
      ....
             (2) Limitations and prohibition on extent of reduction.

                   (A) In general. Except as provided in subdivision (B), the
                   court shall not reduce the defendant’s term of imprisonment
                   under 18 U.S.C. § 3582(c)(2) and this policy statement to a
                   term that is less than the minimum of the amended guideline
                   range determined under subdivision (1) of this subsection.

                     (B) Exception. If the original term of imprisonment imposed
                     was less than the term of imprisonment provided by the
                     guideline range applicable to the defendant at the time of
                     sentencing, a reduction comparably less than the amended
                     guideline range determined under subdivision (1) of this
                     subsection may be appropriate. However, if the original term
                     of imprisonment constituted a non-guideline sentence
                     determined pursuant to 18 U.S.C. § 3553(a) and United States
                     v. Booker, 543 U.S. 220 (2005), a further reduction generally
                     would not be appropriate.
                     .....
      (c) Covered amendments. Amendments covered by this policy statement
      are listed in Appendix C as follows: 126, 130, 156, 176, 269, 329, 341, 371,
      379, 380, 433, 454, 461, 484, 488, 490, 499, 505, 506, 516, 591, 599, 606,
      657, 702, 706 as amended by 711, and 715.

§ 1B1.10 (2010) (emphasis added).

2. 2014 Version of § 1B1.10(b)(2)(B)

      In 2011, § 1B1.10(b)(2) was amended to the following, which remained in the

2014 version:

      (B) Exception for Substantial Assistance. If the term of imprisonment
      imposed was less than the term of imprisonment provided by the guideline
      range applicable to the defendant at the time of sentencing pursuant to a
      government motion to reflect the defendant’s substantial assistance to



                                           -6-
       authorities, a reduction comparably less than the amended guideline range
       determined under subdivision (1) of this subsection may be appropriate.

§ 1B1.10(b)(2)(B) (2014) (emphasis added). In short, the 2010 version generally

permitted “a reduction comparably less than the amended guideline range.”

§ 1B1.10(b)(2)(B) (2010). The 2014 version allowed such a reduction only if it was

based on substantial assistance to the Government.

3. Amendment 782 and the 2014 Version of § 1B1.10(d) (“Covered amendments”)

       The Commission issued Amendment 782, effective November 1, 2014, to provide

a retroactive two-offense-level reduction for certain drug offenses. It simultaneously

added Amendment 782 to the list of “Covered amendments” in § 1B1.10(d).2

                                      B. Analysis

       To violate the Ex Post Facto Clause, a change in law must present a “sufficient

risk of increasing the measure of punishment attached to the covered crimes.” Peugh v.

United States, 133 S. Ct. 2072, 2082 (2013) (quotations omitted). The district court’s

application of the 2014 version of § 1B1.10 could not have violated the Ex Post Facto

Clause because Mr. Wilson is ineligible for a reduction under both the 2010 and 2014

versions of § 1B1.10.

       Mr. Wilson is ineligible for a reduction under the 2010 version because

Amendment 782, adopted in 2014, plainly was not listed in the 2010 version’s

§ 1B1.10(c)—“Covered amendments.” See § 1B1.10(A)(2) (2010) (“A reduction in the

       2
        Due to an unrelated amendment of § 1B1.10 in 2014, the “Covered amendments”
provision previously denominated § 1B1.10(c) became § 1B1.10(d).



                                            -7-
defendant’s term of imprisonment is not consistent with this policy statement and

therefore is not authorized under 18 U.S.C. § 3582(c)(2) if—(A) None of the

amendments listed in subsection (c) [“Covered amendments”] is applicable to the

defendant . . .”).

       Mr. Wilson is also ineligible for a reduction under the 2014 version, which does

include Amendment 782, for the reasons indicated by the district court. His original

sentence of 60 months is less than his amended guideline range of 100-25 months of

imprisonment—a range he does not contest. See § 1B1.10(b)(2)(A) (2014). And his

original variance was not based on substantial assistance. See § 1B1.10(b)(2)(B) (2014).

                                   III. CONCLUSION

       Because Mr. Wilson is ineligible for a reduction under either version of § 1B1.10,

we affirm the district court’s denial of his motion for a reduced sentence.

                                              ENTERED FOR THE COURT,



                                              Scott M. Matheson, Jr.
                                              Circuit Judge




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