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

                               TENTH CIRCUIT                        May 2, 2016

                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
    UNITED STATES OF AMERICA,

               Plaintiff-Appellee,
    v.                                                   No. 15-4124
                                               (D.C. No. 2:09-CR-00931-TC-1)
    MARC THOMAS BANYAI,                                 (D. Utah)

               Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.



         This appeal involves the availability of sentence modification for

career offenders. In 2010, Mr. Marc Thomas Banyai pleaded guilty to drug

and gun charges and was sentenced as a career offender to 120 months of

imprisonment and 60 months of supervised release. He moved to reduce his

sentence under Amendment 782 of the United States Sentencing


*
      We do not believe oral argument would be helpful. As a result, we
are deciding the appeal based on the briefs. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
Guidelines. The district court denied the motion, reasoning that career

offenders are not eligible for a sentence reduction under the amendment.

Mr. Banyai appeals and seeks leave to proceed in forma pauperis. We grant

leave to proceed in forma pauperis and vacate the denial of relief with

instructions to dismiss Mr. Banyai’s motion based on an absence of

jurisdiction.

      Mr. Banyai cannot afford to prepay the filing fee and presents a

nonfrivolous claim. Thus, we grant leave to proceed in forma pauperis. See

DeBardeleben v. Quinlan, 937 F.3d 502, 505 (10th Cir. 1991).

      Because we are allowing leave to proceed in forma pauperis, we

proceed to consider Mr. Banyai’s two claims:

      1.    Amendment 782 of the sentencing guidelines authorizes a
            sentence reduction.

      2.    The sentence was based on an overly vague sentencing
            guideline.

The district court lacked jurisdiction to consider the first argument, and

Mr. Banyai failed to make the second argument until this appeal.

      In district court, Mr. Banyai invoked 18 U.S.C. § 3582(c)(2), which

permits district courts to reduce a prisoner’s sentence “that has

subsequently been lowered by the Sentencing Commission . . . if such a

reduction is consistent with applicable policy statements issued by the

Sentencing Commission.” 18 U.S.C. § 3582(c). Amendment 782 of the

United States Sentencing Guidelines allows a retroactive two-level

                                      2
reduction under §§ 2D1.1 and 2D1.11 of the guidelines. U.S. Sentencing

Guidelines Manual § 1B1.10 App’x C Supplement, Amendment 782 (Nov.

1, 2014). But Amendment 782 does not apply to career offenders, 1 for their

sentences are calculated under § 4B1.1—not §§ 2D1.1 and 2D1.11. See

United States v. Perez, No. 15-2150, 2016 WL 827885, at *4 (10th Cir.

Mar. 3, 2016) (unpublished) (career offenders are not eligible for a

sentence reduction under Amendment 782); United States v. Gray, 630 F.

App’x 809, 812-13 (10th Cir. 2015) (unpublished) (same).

     Federal district courts lack jurisdiction to modify a term of

imprisonment in the absence of an applicable exception under § 3582(c).

United States v. White, 765 F.3d 1240, 1250 (10th Cir. 2014); see also

United States v. Graham, 704 F.3d 1275, 1279 (10th Cir. 2013) (stating

that the defendant’s motion should have been dismissed on jurisdictional

grounds, rather than denied, when the district court lacked power to modify

the sentence under § 3582(c)). 2 Because Mr. Banyai’s sentence falls outside



1
      Mr. Banyai denies that he was sentenced as a career offender. But he
was. In the presentence report, the probation officer classified Mr. Banyai
as a career offender. Defense counsel objected to this designation. At
sentencing, the district court concluded that the presentence report did not
contain any errors and adopted the presentence report in full.
2
      Some circuits take a different approach, treating lack of power under
§ 3582(c) as a substantive defect rather than a jurisdictional defect. See
United States v. Taylor, 778 F.3d 667, 668 (7th Cir. 2015) (“§ 3582(c)(2)
does not limit a district court’s subject-matter jurisdiction to consider a
motion brought under that statute, even a motion that the court would not
                                      3
of the specific exceptions in § 3582(c), the district court should have

dismissed his motion for lack of jurisdiction. See id.

      Mr. Banyai also argues that his sentence should be reduced on

vagueness grounds under the Supreme Court’s recent decision in Johnson

v. United States, __ U.S. __, 135 S. Ct. 2551 (2015). Because Mr. Banyai

did not raise this argument in district court or argue plain error, we decline

to entertain this argument for reversal. See United States v. Lamirand, 669

F.3d 1091, 1099 n.7 (10th Cir. 2012). Thus, Mr. Banyai’s newly asserted

reliance on Johnson does not affect our disposition.

                                     * * *

      In district court, Mr. Banyai asserted only one ground for relief.

Because the district court lacked jurisdiction to consider that argument, we

remand with instructions to dismiss Mr. Banyai’s § 3582(c)(2) motion for

lack of jurisdiction.


                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




______________________________
be authorized to grant”); United States v. Johnson, 732 F.3d 109, 116 n.11
(2d Cir. 2013) (stating that ineligibility for relief under § 3582(c)(2) is not
a jurisdictional defect).
                                       4
