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

                             FOR THE TENTH CIRCUIT                       December 14, 2015
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 15-6131
                                                   (D.C. No. 5:10-CR-00224-F-1)
ARMAN BAYATYAN,                                            (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

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

      Arman Bayatyan was charged with one count of knowingly and intentionally

conspiring with others to possess with intent to distribute five kilograms or more of a

mixture or substance containing a detectable amount of cocaine powder, 21 U.S.C.

§ 841(a)(1), (b)(1)(A), and knowingly and intentionally possessing with intent to

distribute five kilograms or more of a mixture or substance containing a detectable

amount of cocaine powder, 21 U.S.C. § 841(a)(1), (b)(1)(A). He pleaded guilty to

possession with intent to distribute the charged amount of cocaine powder under the

      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
terms of a written plea agreement. Bayatyan’s sentence was computed using the 2011

Sentencing Guidelines. He was held accountable for 148.6 kilograms of cocaine

powder, yielding a base offense level of 36. Bayatyan was given a two level

reduction for the safety valve adjustment and a three level reduction for acceptance

of responsibility. With a total offense level of 31 and a criminal history category of I,

Bayatyan’s advisory guideline range was 108 to 135 months. Based on the nature and

circumstances of the offense and the characteristics of the defendant, Bayatyan

received a below-Guidelines sentence of 84 months’ incarceration and five years of

supervised release. Bayatyan did not appeal.

      The Sentencing Commission later promulgated Amendment 782 which

provided for a two-offense-level reduction for many drug offenses, including

Bayatyan’s, effective November 1, 2014. In April 2015, Bayatyan filed a motion

under 18 U.S.C. § 3582(c)(2) for a reduction of his sentence. Had he been sentenced

under the new guideline range, Bayatyan’s advisory guideline range would have been

87 to 108 months. The Probation Office and the United States Attorney argued

Bayatyan was ineligible for a sentence reduction because his original sentence fell

below the new guideline range. Id. Bayatyan argued that the application of the

amended version of U.S.S.G. § 1B1.10 violated the Ex Post Facto Clause of the

Constitution, U.S. Const. Ar. I, § 9, cl. 3, because he may have been eligible for a

reduction of his sentence under the version of §1B1.10 in May 2010, the time of his

crime. The district court summarily denied his motion. Bayatyan now appeals.

Exercising jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we affirm.

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         “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).

         Before Amendment 759, § 1B1.10(b)(2) read as follows:

         (2) Limitation 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.

U.S.S.G. § 1B1.10(b) (2010) (emphasis added). This exception applies only to

covered amendments then listed in the guideline:

         (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.

U.S.S.G. § 1B1.10(c). The amended version which became effective on Nov. 1, 2011,

reads as follows:

         (2) Limitation and Prohibition on Extent of Reduction

               (A) Limitation.—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
                                            3
              minimum of the amended guideline range determined under subdivision
              (1) of this subsection

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

U.S.S.G. § 1B1.10 (2014). The guideline also lists covered amendments:

      (d) 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, 750
      (parts A and C only), and 782 (subject to subsection (e)(1)).

U.S.S.G. § 1B1.10(d).

      “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). Before an amended guideline presents an ex post facto violation, it must

present “a sufficient risk of increasing the measure of punishment attached to the

covered crimes.” Peugh v. United States, 113 S. Cr. 2072, 2082 (2013) (quoting

Garner v. Jones, 529 U.S. 244, 250 (2000)). Bayatyan argues that, because he would

have been eligible to be considered for a sentence reduction under the 2010 version

but is barred by the current version, Amendment 759 violated his ex post facto rights

(even though the 2010 version declared that relief “generally would not be

appropriate,” and Bayatyan offers no persuasive reason why his case should be the

exception).


                                          4
      Bayatyan’s ex post facto argument is misplaced. First, he was sentenced under

the 2011 Guidelines Manual which already included the new version of § 1B1.10.

Second, the 2010 version of § 1B1.10 would not help Bayatyan. Eligibility for a

reduction is tied to the list of covered amendments listed in § 1B1.10. Even if

Bayatyan were sentenced under the 2010 Guidelines, that version of § 1B1.10 never

encompassed Amendment 782; the last amendment it applied to was Amendment

715. Amendment 782 was never a covered amendment under the 2010 Guidelines for

the obvious reason that it did not yet exist. When the Sentencing Commission

amended § 1B1.10 in 2011, all later reductions in the guidelines were subject to that

provision.

      The situation may have been different had Bayatyan been sentenced under the

2010 Guidelines (or earlier) and now filed a motion for a reduction under

Amendment 715. Because that amendment was a covered amendment under the 2010

version of § 1B1.10, Bayatyan may have been able to make out an ex post facto

claim. Here, however, he has suffered no disadvantage: at no point was Amendment

782 covered under the 2010 version of § 1B1.10. Rather, by the time the Sentencing

Commission promulgated Amendment 782, the only version of § 1B1.10 available

was the current one. There is no ex post facto violation.

      This result is in line with other circuits that have considered the question. See

United States v. Waters, 771 F.3d 679, 681 (9th Cir. 2014) (“[B]ecause application of

the amendments would not increase the punishment for [the defendant’s] crime over

what was imposed when he was sentenced, there is no ex post facto problem.”);

                                           5
United States v. Diggs, 768 F.3d 643, 645 (7th Cir. 2014) (“By 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.”). In United States v. Colon, 707

F.3d 1255, 1258 (11th Cir. 2013), the Eleventh Circuit found that the point of

comparison for ex post facto purposes were the guidelines when the defendant

committed her crimes, in that case 2005. Id. At that point neither the new version of

§ 1B1.10 nor the leniency amendment at issue existed. Id. Therefore, the court

determined that the new version of § 1B1.10 could not increase the guideline range

above what it was at the time the defendant committed her crime. Id. at 1259. Rather,

the defendant’s “guidelines range after those amendments was the same as it would

have been without them.” Id. Thus, there was no ex post facto violation. Bayatyan’s

situation is analogous.

      We find no ex post facto violation in applying the current version of § 1B1.10

to Bayatyan and therefore we affirm.


                                          Entered for the Court


                                          Gregory A. Phillips
                                          Circuit Judge




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