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

                             FOR THE TENTH CIRCUIT                            March 30, 2016
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 15-3151
                                                  (D.C. No. 6:02-CR-10074-MLB-2)
JESUS MENDOZA, a/k/a Silva,                                   (D. Kan.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, BALDOCK, and MORITZ, Circuit Judges.
                  _________________________________

       After the United States Sentencing Commission adopted a retroactive amendment

to the Sentencing Guidelines for various drug offenses, Defendant moved for a reduction

in his sentence. The district court denied the motion because Defendant’s present

sentence is below the guideline sentencing range computed under the amended

guidelines. Defendant appeals. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

       On November 20, 2006, Defendant pleaded guilty in the United States District

Court for the District of Kansas to violations of 21 U.S.C. §§ 846, 841(a)(1), and

       *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
856(a)(1). The district court, without objection from Defendant, calculated a guideline

sentencing range of 324–405 months but varied downward and sentenced Defendant to

240 months’ imprisonment.

       The Sentencing Commission later adopted Amendment 782, which reduces by two

levels many of the base offense levels assigned for drug offenses. The amendment is

retroactive. Applying it to Defendant would reduce his guideline sentencing range from

324–405 months to 262–327 months. Although it is not in the record, a document from

Defendant was construed by the district court as a motion to reduce his sentence because

of the amendment.

       “A federal court generally ‘may not modify a term of imprisonment once it has

been imposed.’” Dillon v. United States, 560 U.S. 817, 819 (2010) (quoting 18 U.S.C.

§ 3582(c)). But an exception lies “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.” 18 U.S.C. § 3582(c)(2). In that event the sentencing court

“may reduce the term of imprisonment, after considering the factors set forth in [18

U.S.C. §] 3553(a).” Id. Any reduction under § 3582(c)(2) must, however, be “consistent

with applicable policy statements issued by the Sentencing Commission.” Id. The

applicable policy statement is found at USSG § 1B1.10, “Reduction in Term of

Imprisonment as a Result of Amended Guideline Range (Policy Statement).” See Dillon,

560 U.S. at 827 (“§ 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.”). Unless

the defendant originally received a guideline-range reduction for providing substantial

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assistance to authorities, see USSG § 1B1.10(b)(2)(B)—which Defendant did not—that

policy statement does not authorize a reduction if the defendant’s existing sentence is

lower than the low end of the guideline range computed under the amendment. See id.

§ 1B1.10(b)(2)(A) (“[T]he court shall not reduce the defendant’s term of imprisonment

… to a term that is less than the minimum of the amended guideline range.”). Because

Defendant’s existing sentence was 240 months and his amended range was 262–327

months, he was not eligible for a reduction under § 3582(c)(2). The district court

properly dismissed his motion.

       Defendant claims that the district court erred in denying a reduction without

considering any of the factors set forth in 18 U.S.C. § 3553(a). And he complains that

the document construed by the court as a motion under § 3582(c) was in fact merely a

letter asking how to prepare a motion for a sentence reduction based on Amendment 782,

so the court’s misconstruction denied him the opportunity to present a more complete

§ 3582(c) motion addressing his entitlement to a reduction under the § 3553(a) factors.

For his contention that the district court was required to address the § 3553(a) factors,

Defendant relies on United States v. Trujillo, 713 F.3d 1003 (9th Cir. 2013). But he

misreads that decision. In Trujillo the Ninth Circuit held that the defendant was eligible

for a reduction and then ordered the district court to address the § 3553(a) factors in

considering whether to grant one. See id. at 1006–11. Here, Defendant was not eligible,

so the district court correctly did not address the § 3553(a) factors. See Dillon, 560 U.S.

at 827. And because there was no need to address the § 3553(a) factors, any

misconstruction of Defendant’s letter that denied him the opportunity to discuss them was

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harmless error. See United States v. Montgomery, 439 F.3d 1260, 1263 (10th Cir. 2006)

(“Harmless error is that which did not affect the district court’s selection of the sentence

imposed.”) (internal quotation marks omitted).

       We AFFIRM the district court’s denial of Defendant’s motion under § 3582(c)(2).

Appellant’s motion to proceed in forma pauperis is DENIED.


                                              Entered for the Court


                                              Harris L Hartz
                                              Circuit Judge




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