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

                             FOR THE TENTH CIRCUIT                       October 20, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 16-4014
                                                 (D.C. No. 2:99-CR-00109-TC-1)
JULIAN SANDOVAL-FLORES,                                     (D. Utah)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, McKAY, and MORITZ, Circuit Judges.
                  _________________________________

      Mr. Sandoval-Flores moved the district court to reduce his sentence under 18

U.S.C. § 3582(c)(2), which allows such reductions when the sentencing range for a

defendant’s conduct is lowered after his sentence is imposed. The district court,

having already granted one such motion from Mr. Sandoval-Flores, denied the

present motion as moot.

      On appeal, Mr. Sandoval-Flores argues that his motion was not moot. His first

motion was based on U.S. Sentencing Guidelines Amendment 782, which lowered

      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
the guidelines sentences for Mr. Sandoval-Flores’s drug trafficking. The present

motion is based on Amendment 599, which (Mr. Sandoval-Flores claims) provides a

basis for reducing his sentence still further—a basis the district court did not even

consider before denying his motion.

      The government does not defend the district court’s finding of mootness.

Instead it addresses the motion’s merits, arguing that Amendment 599 does not apply

to Mr. Sandoval-Flores. Because Amendment 599 does not apply, the government

argues, we must instruct the district court to vacate its order denying Mr. Sandoval-

Flores’s motion and order the motion dismissed for lack of jurisdiction.

      But we do not need to determine whether Amendment 599 applies to Mr.

Sandoval-Flores; his motion fails for a more basic reason. The statute he relies on

allows defendants to move for a sentence reduction if the guidelines range for their

conduct is “subsequently . . . lowered”—that is, lowered after the defendant has been

sentenced. 18 U.S.C. § 3582(c)(2). Mr. Sandoval-Flores’s sentencing hearing took

place on February 26, 2001. Judgment against him was entered on June 4, 2001. But

Amendment 599 had already taken effect on November 1, 2000.

      Mr. Sandoval-Flores argues in his motion that he was sentenced under the

1998 guidelines, and that the sentencing court did not account for Amendment 599.

But that, even if true, is irrelevant. If the sentencing court applied an outdated

version of the guidelines, Mr. Sandoval-Flores should have sought to correct its error

through his direct appeal or his first habeas petition. Such errors cannot be corrected



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through § 3582(c)(2): we cannot pretend Amendment 599 took effect “subsequent”

to his sentencing. Mr. Sandoval-Flores’s § 3582(c)(2) motion cannot be granted.

       Because Mr. Sandoval-Flores was statutorily ineligible for relief under §

3582(c)(2), the district court lacked jurisdiction over his motion. See United States v.

Trujeque, 100 F.3d 869, 871 (10th Cir. 1996).1 We accordingly REMAND with

directions for the district court to dismiss this case for lack of jurisdiction.


                                              Entered for the Court


                                              Monroe G. McKay
                                              Circuit Judge

       1
         We note that there appears to be both an intra-circuit and inter-circuit split on
the question of whether statutory ineligibility for § 3582 relief is jurisdictional. In
several cases both preceding and following Trujeque, panels of this circuit have
affirmed the district court’s denial of § 3582 relief on the merits rather than
remanding for dismissal for lack of jurisdiction, see, e.g., United States v. Avila, 997
F.2d 767, 768 (10th Cir. 1993); United States v. Darton, 595 F.3d 1191, 1197 (10th
Cir. 2010), while other panels have held based on Trujeque that the lack of eligibility
for § 3582(c)(2) relief is a jurisdictional matter requiring dismissal for lack of
jurisdiction rather than denial on the merits, see, e.g., United States v. Hamilton, 525
F. App’x 730, 733 (10th Cir. 2013); United States v. Graham, 704 F.3d 1275, 1279
(10th Cir. 2013). The Seventh Circuit resolved a similar intra-circuit split by holding
that § 3582(c)(2)’s statutory criteria create a non-jurisdictional case-processing rule
that does not deny the district court of subject-matter jurisdiction to evaluate and
deny § 3582(c)(2) relief. See United States v. Taylor, 778 F.3d 667, 670–71 (7th Cir.
2015). The Second Circuit has also held that § 3582 ineligibility is nonjurisdictional.
See United States v. Johnson, 732 F.3d 109, 116 n.11 (2d Cir. 2013). We believe this
is the better approach. However, since Trujeque is the first case in this circuit that
directly addressed the question of jurisdiction, it appears to be the controlling
authority we must now follow. See Haynes v. Williams, 88 F.3d 896, 900 n.4 (10th
Cir. 1996) (“[W]hen faced with an intra-circuit conflict, a panel should follow earlier,
settled precedent over a subsequent deviation therefrom.”); United States v. L.A.
Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952) (holding that a court “is not bound
by a prior exercise of jurisdiction in a case where it was not questioned and was
passed sub silentio”).
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