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

                             FOR THE TENTH CIRCUIT                              August 29, 2016
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 16-7027
                                                    (D.C. No. 6:98-CR-00025-FHS-1)
HAROLD GLEN CLAYTON, a/k/a                                    (E.D. Okla.)
Harold Clayton,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

       Defendant Harold Glen Clayton, proceeding pro se, appeals from the district

court’s denial of his motion for a reduced sentence under 18 U.S.C. § 3582(c)(2).

Exercising jurisdiction under 28 U.S.C. § 1291, we vacate the order denying the motion

and remand to the district court with instructions to enter an order dismissing the motion




       *
         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 This order and judgment is not binding precedent,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.
for lack of jurisdiction. We also deny Mr. Clayton’s request to proceed in forma

pauperis.

                                   I. BACKGROUND

       Mr. Clayton pled guilty to (1) conspiracy to possess with intent to distribute

methamphetamine in violation of 21 U.S.C. § 846, (2) conspiracy to launder money in

violation of 18 U.S.C. § 1956(h), and (3) unlawful removal of vehicle identification

numbers in violation of 18 U.S.C. § 511(a). United States v. Clayton, 201 F.3d 449, 1999

WL 1079627, at *1 (10th Cir. Nov. 30, 1999) (unpublished table opinion) (“Clayton I”).

His base offense level of 40 and criminal history category of II resulted in a United States

Sentencing Guidelines range of 324 to 405 months. In 1999, the district court sentenced

Mr. Clayton to 324 months in prison on the drug conspiracy count, 60 months on the

vehicle-identification count, and 240 months on the money laundering conspiracy count,

all to run concurrently. See United States v. Clayton, 92 F. App’x 703, 704 (10th Cir.

2004) (unpublished) (“Clayton III”). We affirmed Mr. Clayton’s conviction on direct

appeal. Clayton I, 201 F.3d 449.

       Mr. Clayton subsequently filed a 28 U.S.C. § 2255 motion to vacate, set aside, or

correct his sentence, arguing his counsel rendered ineffective assistance and his

indictment did not include a drug quantity amount, in violation of Apprendi v. New

Jersey, 530 U.S. 466 (2000). United States v. Clayton, 46 F. Appx. 954, 955 (10th Cir.

2002) (unpublished) (“Clayton II”). Under Apprendi, “any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be submitted to a jury, and




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proved beyond a reasonable doubt.” 530 U.S. at 490. The district court denied the

motion, and we affirmed. Clayton II, 46 F. App’x at 955.

      Mr. Clayton next filed an 18 U.S.C. § 3582(c)(2) motion to modify his 324-month

sentence for drug conspiracy, arguing Amendment 613 to the United States Sentencing

Guidelines reduced the sentencing range applicable to his term of imprisonment. Clayton

III, 92 F. App’x at 704. The district court denied Mr. Clayton’s claim. See id. We

affirmed because Amendment 613 did not authorize a reduction in his sentence under

§ 3582(c)(2). Id. at 705-06. We also rejected Mr. Clayton’s Apprendi argument. Id.

      Following a second unsuccessful § 2255 petition to this court, Mr. Clayton filed

the instant § 3582(c)(2) motion to modify his sentence based on Amendment 782 to the

Guidelines, contending the amendment lowered the sentencing guideline range for his

drug conspiracy conviction. The district court denied the motion, and Mr. Clayton

appealed.

                                   II. DISCUSSION

      The government challenges the timeliness of Mr. Clayton’s appeal, noting he has

not provided documentation of compliance with the prison mailbox rule. From the

papers before us, we agree that Mr. Clayton has not met his burden to show compliance

with the mailbox rule, Price v. Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005) (explaining

that the prisoner has the burden to show compliance with the prison mailbox rule), a




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nonjurisdictional defect.1 Rather than order Mr. Clayton to show cause why his notice of

appeal was not untimely, we instead remand to the district court to vacate this matter for

lack of jurisdiction to hear Mr. Clayton’s motion for a sentence reduction under

§ 3582(c)(2).

       Amendment 782 retroactively reduces by two levels many of the base offense

levels for drug offenses. U.S. Sentencing Guidelines Manual app. C supp., amend. 782

(U.S. Sentencing Comm’n 2015). But the district court concluded Amendment 782 did

not reduce “the total offense level applicable to the quantity of methamphetamine

involved in this case (84.52 kilograms).” Dist. Ct. Doc. 144 at 1.

       On appeal, Mr. Clayton does not argue Amendment 782 applies to reduce his

sentence. Instead, he argues the sentencing court erred in 1999 under Apprendi by failing

to submit facts to the jury that served as a basis for his offense level, including the drug

quantity. He further argues the district court perpetuated the error by relying on this

offense level when it denied his § 3582(c)(2) motion. He therefore urges us to revisit his

initial sentence to determine whether it violates Apprendi.

       Mr. Clayton did not raise his Apprendi argument to the district court, forfeiting his

ability to do so now. See Paycom Payroll, LLC v. Richison, 758 F.3d 1198, 1203 (10th

Cir. 2014) (“[I]f the theory simply wasn’t raised before the district court, we usually hold

it forfeited.” (quotations omitted)). But even if we were to address the issue, § 3582(c)(2)

       1
         See United States v. Garduño, 506 F.3d 1287, 1290-91 (10th Cir. 2007) (time
limit for filing a notice of appeal in a criminal case is not jurisdictional under Fed. R.
App. P. 4(b)(1)(A)).



                                              -4-
does not grant district court’s jurisdiction to consider whether a sentence was incorrectly

imposed. See United States v. Torres-Aquino, 334 F.3d 939, 941 (10th Cir. 2003); United

States v. Golden, No. 16-7012, 2016 WL 4258839, at *1 (10th Cir. Aug. 11, 2016)

(unpublished); United States v. Fisher, No. 15-5100, 2016 WL 4064140, at *2 (10th Cir.

July 28, 2016) (unpublished); United States v. Lawrence, 363 F. App’x 579, 581 (10th

Cir. 2010) (unpublished).2 Mr. Clayton therefore cannot raise his Apprendi argument

through a § 3582(c)(2) motion. Please also note we rejected Mr. Clayton’s Apprendi

argument in Clayton II and Clayton III.3

                                   III. CONCLUSION

       The district court properly concluded it lacked authority to reduce Mr. Clayton’s

sentence under § 3582(c)(2). Rather than deny his motion for a sentence reduction,

however, the court should have dismissed it. See United States v. White, 765 F.3d 1240,

1250 (10th Cir. 2014). Accordingly, we vacate the district court’s order denying Mr.

Clayton’s motion, remand with instructions to enter an order of dismissal for lack of




       2
        We cite these unpublished decisions for their persuasive value. See 10th Cir. R.
32.1(A).
       3
         See Clayton II, 46 F. App’x at 955 (concluding Mr. Clayton’s Apprendi claim
was barred, in part, under United States v. Mora, 293 F.3d 1213, 1218-19 (10th Cir.
2002), which held that Apprendi is not retroactively applicable to habeas cases on
collateral review); see also Clayton III, 92 F. App’x at 705-06 (noting we and the district
court had previously rejected Mr. Clayton’s Apprendi argument, Mr. Clayton’s own
pleading admitted an agreement of 185.5 pounds of methamphetamine for sentencing
purposes, and “Mr. Clayton improperly brought his Apprendi claim under § 3582(c)(2)”).




                                             -5-
jurisdiction, and deny his request to proceed in forma pauperis.


                                             ENTERED FOR THE COURT,



                                             Scott M. Matheson, Jr.
                                             Circuit Judge




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