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

                             FOR THE TENTH CIRCUIT                          June 12, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 17-5016
                                                   (D.C. No. 4:14-CR-00141-GKF-1)
JOSE BERNARDO GONZALEZ-                                       (N.D. Okla.)
RAMOS, a/k/a Ramos Gonzalez,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
                  _________________________________

       Defendant Jose Bernardo Gonzalez-Ramos, a federal prisoner proceeding pro se,

appeals the denial of his motion for sentence modification and appointment of counsel.

See 18 U.S.C. § 3582(c)(2) (sentence modification). We exercise jurisdiction under

28 U.S.C. § 1291 and affirm.

       On September 23, 2014, Defendant pleaded guilty in the United States District

Court for the Northern District of Oklahoma to one count of illegal reentry, in violation


*
  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 This order and judgment is not binding precedent, except under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.
of 8 U.S.C. § 1326(a), (b)(2). On January 7, 2015, he was sentenced to 37 months’

imprisonment. The following year, the United States Sentencing Commission adopted

Amendment 802 to its Sentencing Guidelines, effective November 1, 2016. See USSG

Supp. to app. C., amend. 802 at 159 (2016). The amendment reduces the offense levels

for certain enhancements under USSG § 2L1.2(b)(1)(A). See USSG Supp. to app. C.,

amend. 802 at 156.

       On January 17, 2017, Defendant filed a motion to reduce his sentence because of

the Amendment. The district court denied the motion, explaining that “the Sentencing

Commission did not make the amendment to § 2L1.2(b)(1) retroactive.” R., Vol. I at 16

(Order) (original brackets and internal quotation marks omitted). Defendant timely

appealed.

       “Ordinarily, sentencing courts may not modify a term of imprisonment once it has

been imposed.” U.S. v. Boyd, 721 F.3d 1259, 1261 (10th Cir. 2013). But 18 U.S.C.

§ 3582(c)(2) creates an exception when the Sentencing Commission has reduced the

applicable sentencing range “if such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission.” Section 1B1.10 of the Sentencing

Guidelines, in turn, states:

       In a case 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 (d) below, the court may
       reduce the defendant’s term of imprisonment as provided by 18 U.S.C.
       § 3582(c)(2).

USSG § 1B1.10(a)(1) (2016) (emphasis added). A sentence reduction is thus permitted

only if the amendment reducing the sentencing range is listed in § 1B1.10(d). See also


                                             2
§ 1B1.10(a)(2)(A) (reduction is not authorized under § 3582(c)(2) if “none of the

amendments listed in subsection (d) is applicable to the defendant”). Because

Amendment 802 is not listed in § 1B1.10(d), it does not have retroactive effect and the

district court was correct to deny Defendant’s motion.

       On appeal Defendant presents an entirely different claim. He now contends that

“he was not given the correct jail credit per 18 U.S.C. Section 3585(b)” because the

district court failed to apply his time in custody with the United States Immigration and

Customs Enforcement Agency. Aplt. Br. at 2. Nothing in the record indicates that

Defendant raised this issue before the district court. Generally, “a federal appellate court

does not consider an issue not passed upon below.” In re Walker, 959 F.2d 894, 896

(10th Cir. 1992) (internal quotation marks omitted). Defendant “does not argue on

appeal that any special circumstance requires us to address [his] contention despite lack

of preservation below.” United States v. Windrix, 405 F.3d 1146, 1156 (10th Cir. 2005).

Therefore, we do not consider his new claim.

       We AFFIRM the judgment of the district court.

                                              Entered for the Court


                                              Harris L Hartz
                                              Circuit Judge




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