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

                                TENTH CIRCUIT                             November 3, 2011
                       ___________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
v.                                                            No. 11-5106
PETER ANTHONY GUTIERREZ,                           (D.C. No. 4:95-CR-0152-TCK-1)
                                                             (N.D. Okla.)
       Defendant-Appellant.
                   ____________________________________
                           ORDER AND JUDGMENT*
                      ____________________________________

Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.**
                 ____________________________________

       In 1996, Defendant pleaded guilty to two federal firearms offenses. The district

court sentenced Defendant to 235 months imprisonment, the low end of the applicable

guideline range. Prior to 2010, the sentencing guidelines provided for two additional

criminal history points if a defendant committed the crime at issue within two years of

being released from imprisonment. These two “recency” points moved Defendant from

criminal history category IV to category V. Defendant now argues that Amendment 742

to the guidelines, which removed the “recency” points from the guidelines, should apply

       *
        This order and judgment is not binding precedent except under the doctrines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.
       **
          After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
retroactively to his sentence. U.S.S.G. App. C, amend. 742 (effective Nov. 1, 2010). The

district court rejected this argument. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm in part and dismiss in part.

                                            I.

       Defendant pleaded guilty to possessing a firearm after a felony conviction in

violation of 18 U.S.C. § 922(g)(1) and possessing stolen firearms in violation of 18

U.S.C. § 922(j). Each offense carried a statutory maximum of ten years imprisonment.

Defendant’s prior convictions, standing alone, yielded nine criminal history points, which

would have resulted in criminal history category IV. But the sentencing guidelines

imposed two additional points because Defendant “committed the instant offense less

than two years after release from imprisonment” on a qualifying sentence. U.S.S.G.

§ 4A1.1(e) (1995). Defendant had been released from custody only three months prior to

the offenses to which he pled guilty. Thus, the two recency points applied, increasing

Defendant’s criminal history points to eleven and his category to V. Based on an offense

level of 34, Defendant’s guideline range was 235 to 240 months under category V, but

would have been 210 to 262 months under category IV. The district court sentenced

Defendant to 235 months in prison.

       In 2010, the United States Sentencing Commission adopted Amendment 742,

which eliminated recency points under § 4A1.1. The Commission did not, however,

designate Amendment 742 as an amendment that applies retroactively to allow a

sentencing reduction. See U.S.S.G. § 1B1.10(c). Defendant subsequently filed a motion

for resentencing pursuant to 18 U.S.C. § 3582(c)(2), raising two claims. First, Defendant

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argued that under Amendment 742 he was entitled to a guideline range of 210 to 262

months.1   Defendant also claimed that the court should reduce his sentence based on the

Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). He argued

that “the trial court was not able to take into account” the discretionary factors of 18

U.S.C. § 3553(a) at sentencing, but that “pursuant to Booker . . . [the district court] can

now ‘tailor’ the sentence in light of” the § 3553(a) factors. The district court rejected

Defendant’s first argument and concluded it had no jurisdiction to resentence Defendant

under § 3582(c). The district court failed to address Defendant’s second argument.

Defendant now appeals.

                                            II.

      We review de novo the district court’s interpretation of a statute and the

sentencing guidelines, as well as its determination regarding its own jurisdiction to

modify a sentence. United States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997). A

district court may only modify a previously imposed sentence “pursuant to statutory

authorization.” United States v. Mendoza, 118 F.3d 707, 709 (10th Cir. 1997). Section

3582(c)(2) permits a district court to modify a sentence when a defendant has been

sentenced “based on a sentencing range that has subsequently been lowered by the

Sentencing Commission . . . if such a reduction is consistent with applicable policy


      1
         Defendant’s motion referred to Amendment 5, but the district court recognized
that Defendant was actually referring to Amendment 742. Defendant’s mislabeling may
arise from the fact that Amendment 742 was the fifth amendment listed in the sentencing
commission’s May 2010 submission to Congress. See U.S. Sentencing Commission,
“Amendments to the Sentencing Guidelines, May 3, 2010,” http://www.ussc.gov/
Legal/Amendments/Reader-Friendly/20100503_RFP_Amendments.pdf
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statements issued by the Sentencing Commission.” The applicable policy statement is

U.S.S.G. § 1B1.10, which says a district court may reduce a sentence in cases involving

“only the amendments listed in subsection (c).” U.S.S.G. § 1B1.10(b)(1). Subsection

(c), entitled “Covered Amendments,” does not include Amendment 742. Id. § 1B1.10(c).

The guidelines reiterate that “[a] reduction in the defendant’s term of imprisonment is . . .

not authorized under 18 U.S.C. § 3582(c)(2) if . . . none of the amendments listed in

subsection (c) is applicable to the defendant . . . .” Id. § 1B1.10(a)(2). The Supreme

Court has recently confirmed that “[a] court’s power under § 3582(c)(2) . . . depends in

the first instance on the Commission’s decision not just to amend the Guidelines but to

make the amendment retroactive.” Dillon v. United States, 130 S. Ct. 2683, 2691 (2010).

Because Amendment 742 is not included in the list of retroactive Amendments, the

district court had no authority to modify the sentence.

       We faced a similar case in United States v. Torres-Aquino, 334 F.3d 939 (10th

Cir. 2003). There, the defendant moved for modification under § 3582(c)(2) based on

Amendment 632, which changed the applicable guideline range for an aggravated-felony

enhancement. Id. at 940. We concluded the defendant was not entitled to a sentence

modification because Amendment 632 was not listed in § 1B1.10(c). Id. at 941. Here,

although the amendment is different, the analysis is the same. Amendment 742 is not one

of the amendments listed in U.S.S.G. § 1B1.10, and therefore Defendant has no right to a




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reduction in sentence under 18 U.S.C. § 3582(c)(2). Accordingly, we affirm as to

Defendant’s first claim.2

                                           III.

       Defendant’s second argument is that the district court “abuse[d] its discretion by

applying the Guidelines as mandatory, because U.S.S.G. § 1B1.10 is at odds with 18

U.S.C. § 3582(c)(2) insofar as the statute was intended to authorize courts to exercise a

certain amount of discretion in determining whether a reduction in sentence pursuant to a

Guideline amendment is warranted.” Defendant asks us to “remand on the issue of

Booker non/mandatory guidelines.” Defendant raised substantially the same claim in the

district court. In his initial motion, Defendant’s second argument focused on the district

court’s authority under Booker to “tailor” a sentence based on the § 3553(a) factors. See

Booker, 543 U.S. at 245. Although Defendant’s arguments on appeal are not identical to




       2
         The Third Circuit has specifically addressed Amendment 742 on a direct appeal.
United States v. Isaac, 655 F.3d 148, 158 (3d Cir. 2011). The defendant in Isaac
challenged his recency enhancement under § 4A1.1(e) based on Amendment 742. Id.
The court observed that “[t]he Sentencing Commission did not make the amendment
retroactive.” Id. The court said, “Under statute and our precedent, we do not have the
authority to reduce a final sentence based on non-retroactive amendments.” Id. In short,
Defendant’s motion for resentencing under § 3582 fails because Amendment 742 is not
retroactive. The Fourth Circuit likewise has rejected the argument that Amendment 742
allows resentencing under § 3582. United States v. Newman, 2011 WL 2451712 (4th
Cir. June 21, 2011) (unpublished) (rejecting a motion to modify a sentence because
Amendment 742 “is not among those listed in USSG § 1B1.10(c) . . . and is therefore not
retroactively applicable”).

                                          -5-
those he raised in the district court, we construe his pro se filings liberally and conclude

that he preserved this issue for appeal.3 Erickson v. Pardus, 551 U.S. 89, 94 (2007).

       The district court, however, failed to mention this second issue.4 Ordinarily, “a

federal appellate court does not consider an issue not passed upon below.” Fogle v.

Pierson, 435 F.3d 1252, 1262 (10th Cir. 2006) (quoting Fisher v. Oklahoma Health Care

Auth., 335 F.3d 1175, 1186 (10th Cir. 2003)); see also Pac. Frontier v. Pleasant Grove

City, 414 F.3d 1221, 1238 (10th Cir. 2005) (“Where an issue has been raised, but not

ruled on, proper judicial administration generally favors remand for the district court to

examine the issue initially.”). Where a defendant is proceeding in forma pauperis,

however, the statute requires a court to dismiss a claim “at any time” if the court deems it

to be frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). In Fogle, we dismissed several claims

brought under the in forma pauperis statute that were not addressed by the district court

but were “indisputably meritless.” Fogle, 435 F.3d at 1262–63.

       If we construe Defendant’s second claim as one for the retroactive application of

Booker, our precedent clearly forecloses that claim. “[L]ike Blakely, Booker does not

       3
         Defendant’s blending of § 3582 and § 3553 is understandable, given that
§ 3582(c)(2) allows the district court to reduce a sentence “after considering the factors
set forth in section 3553(a)” when a defendant was sentenced under a retroactive
guideline amendment. The Supreme Court has explained that § 3582 creates a two-step
process in which the district court must first determine whether a reduction is allowed
under § 1B1.10, and second consider whether the authorized reduction is warranted by
the § 3553(a) factors. Dillon, 130 S. Ct. at 2691.
       4
        The Government also ignored this second argument in its brief on appeal, even
though Defendant articulated it under the heading “Second Issue” in his Form A-12 brief.
When the Government does not respond to an issue, it puts us at the disadvantage of
considering an issue that is not fully briefed.

                                           -6-
apply retroactively on collateral review . . . .” United States v. Bellamy, 411 F.3d 1182,

1188 (10th Cir. 2005). If we construe Defendant’s § 3582 claim as a request for the

district court to reweigh the § 3553(a) factors, the Supreme Court rejected such a claim in

Dillon. The Court said § 3582 applies only “to a limited class of prisoners—namely

those whose sentence was based on a sentencing range subsequently lowered by the

Commission.” Dillon, 130 S. Ct. at 2691. The statute does not authorize “a plenary

resentencing proceeding.” Id. Finally, to the extent Defendant argues § 1B1.10 is not

mandatory after Booker and that the district court has discretion to treat Amendment 742

as retroactive, Dillon again controls. The court in Dillon said “[a] court’s power under

§ 3582(c)(2) . . . depends in the first instance on the Commission’s decision . . . to make

the amendment retroactive.” Id. Thus, no matter how we construe Defendant’s second

claim, it has no legal basis and is therefore frivolous.           Accordingly, we dismiss

Defendant’s second claim.

       AFFIRMED in part and DISMISSED in part.


                                          Entered for the Court,



                                          Bobby R. Baldock
                                          United States Circuit Judge




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