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

                             FOR THE TENTH CIRCUIT                          June 29, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                             No. 16-7088
v.                                                (D.C. No. 6:12-CR-00032-RAW-1)
                                                             (E.D. Okla.)
DARRICK DION ANTWINE,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

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

      Defendant Darrick Dion Antwine appeals from the district court’s dismissal of his

motion to reduce his sentence under 18 U.S.C. § 3582(c)(2) for lack of jurisdiction.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the dismissal. Because

Defendant’s sentence was entered in accordance with a Fed. R. Crim. P. 11(c)(1)(C) plea

agreement to a specific term of imprisonment not calculated under the Sentencing

Guidelines, it was not “based on” the guidelines and § 3582(c)(2) cannot be applied to

lower Mr. Antwine’s sentence.

*
  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 This order and judgment is not binding precedent, except under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.
       We review de novo the district court’s dismissal for lack of jurisdiction under §

3582(c). See United States v. Jordan, 853 F.3d 1334, 1338 (10th Cir. 2017). “Federal

courts generally lack the authority to modify a term of imprisonment once it has been

imposed.” Id. (internal quotation marks omitted). But § 3582(c)(2) provides an

exception to this general rule, permitting a district court to reduce a defendant’s sentence

when two conditions are met: first, that the sentence was “based on a sentencing range

that has subsequently been lowered by the Sentencing Commission”; and second, that

the reduction would be “consistent with applicable policy statements issued by the

Sentencing Commission.” Id. at 1338. Defendant’s motion under § 3582 fails to satisfy

the first condition.

       Defendant was sentenced under a Fed. R. Crim. P. 11(c)(1)(C) agreement. To

determine whether the sentence was based on a guideline sentencing range, we follow

Justice Sotomayor’s concurrence in Freeman v. United States, 564 U.S. 522 (2011); see

United States v. Graham, 704 F.3d 1275, 1278 (10th Cir. 2013) (“Justice Sotomayor’s

concurrence is the narrowest grounds of decision [in Freeman] and represents the Court’s

holding.”). Under that concurrence, “a term of imprisonment imposed under a Rule

11(c)(1)(C) plea agreement is ‘based on’ the Guidelines if the agreement either ‘calls for

the defendant to be sentenced within a particular Guidelines sentencing range,’ or

‘provides for a specific term of imprisonment and makes clear that the basis for the

specified term is a Guidelines sentence range applicable to the offense to which the

defendant pleaded guilty.’” Jordan, 853 F.3d at 1339 (quoting Freeman, 564 U.S. at

538–39 (Sotomayor, J., concurring in judgment)) (brackets and ellipses omitted).


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       Defendant’s plea agreement set his sentence at 240 months’ imprisonment. It does

not purport to rely on any guideline calculation. Indeed, it preceded the calculation of his

guidelines sentencing range by the probation office, which determined that his range was

292–365 months, well above the agreed sentence. The agreement’s only references to the

sentencing guidelines are the government’s disclaimer that it “will not seek any departure

from the applicable sentencing guidelines,” R. at 27, and the government’s agreement to

recommend a three-point reduction in the offense level for Defendant’s acceptance of

responsibility. (Both government promises were mooted by the district court’s

acceptance of the plea agreement.) The agreement neither “call[s] for the defendant to be

sentenced within a particular Guidelines sentencing range” nor does it “make[] clear that

the basis for the specified term is a Guidelines sentencing range applicable to the offense

to which the defendant pleaded guilty.” Freeman, 564 U.S. at 538–39; see United States

v. Price, 627 F. App’x. 738, 741 (10th Cir. 2015) (unpublished) (“Because [the

defendant’s] agreement proposes a specific sentence of 240 months, it does not call for

the district court to sentence Defendant within a particular Guidelines sentencing range”

and is thus not “based on” the sentencing guidelines).

       Because Mr. Antwine’s sentence was not “based on” the sentencing guidelines for

§ 3582 purposes, the district court’s dismissal for lack of jurisdiction was the proper

course. See United States v. Trujeque, 100 F.3d 869, 871 (10th Cir. 1996).




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We AFFIRM the dismissal order of the district court.

                                    Entered for the Court


                                    Harris L Hartz
                                    Circuit Judge




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