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

                             FOR THE TENTH CIRCUIT                        March 15, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 16-4110
                                                   (D.C. No. 2:10-CR-00511-DB-2)
EDRIN ADRIAN MUNOZ,                                           (D. Utah)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
                 _________________________________

      In 2012, Edrin Adrian Munoz pled guilty to possession of over 50 grams of

methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). His

Presentence Report (PSR) set the base offense level at 34. It then added two levels for

possessing a dangerous weapon. After a three-level reduction for acceptance of

responsibility, Mr. Munoz’s total offense level was 33. With a Criminal History

Category of I, Mr. Munoz’s advisory sentencing guideline range was 135 to 168 months.

Because the offense involved at least 50 grams of methamphetamine, Mr. Munoz’s

*
       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       This order and judgment is not binding precedent, except under the doctrines of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.
conviction triggered a statutory mandatory minimum sentence of ten years under

21 U.S.C. § 841(b), which was also noted in the PSR.

       At sentencing, the district court acknowledged that it “can’t give a sentence any

less than ten years under the federal law” (Sent. Tr. at 8) and noted its “strong inclination

to sentence Mr. Munoz to the mandatory minimum sentence of the ten years” (id. at 4–5).

Following its inclination, the court ultimately sentenced Mr. Munoz to ten years of

imprisonment, i.e., the statutory mandatory minimum. Mr. Munoz did not appeal.

       Last year, Mr. Munoz filed a motion under 18 U.S.C. § 3582(c)(2) to reduce his

sentence based on the U.S. Sentencing Commission’s Amendment 782, which would

lower his base offense level (and his guideline range), and Amendment 788, which made

Amendment 782 retroactive. Mr. Munoz also reports that he has “been working very

hard at rehabilitation,” that he “accept[s] full responsibility” for his crime, and that he

“ha[s] learned many skills during [his] incarceration.” (Br. at 2.) According to the

record, he is enrolled in an ESL class and is working toward his GED. His disciplinary

history is minimal and he has maintained clear conduct since 2013.

       Nonetheless, the district court was obliged to deny Mr. Munoz’s § 3582(c)(2)

motion. “[A] district court is authorized to reduce a sentence under § 3582(c)(2) only if

the defendant was originally sentenced to a term of imprisonment based on a sentencing

range that has subsequently been lowered by the Sentencing Commission.” United

States v. White, 765 F.3d 1240, 1246 (10th Cir. 2014) (internal quotation marks omitted)

(emphasis in original). A defendant who was sentenced pursuant to a statutory

mandatory minimum term of imprisonment was not sentenced “based on a sentencing

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range,” and is therefore ineligible for a sentence reduction under § 3582(c)(2). See

United States v. Smartt, 129 F.3d 539, 542 (10th Cir. 1997); see also United States v.

Lagunas, 523 F. App’x 537, 540 (10th Cir. 2013) (“[Defendant] is not serving a sentence

based on a sentencing range lowered by the Sentencing Commission because he was

sentenced pursuant to the statutory mandatory minimum sentence.”).

       Because Mr. Munoz was sentenced pursuant to a statutory mandatory minimum,

he is ineligible for a sentence reduction under § 3582(c)(2). Accordingly, the district

court rejected the § 3582(c)(2) motion. However, it would appear that the district court

denied the motion on the merits. It should have, instead, dismissed the matter for lack of

jurisdiction. See United States v. C.D., No. 15-3318, 2017 WL 694483, at *2 n.2, *4

(10th Cir. Feb. 22, 2017).

       We REMAND the matter to the district court with instructions to VACATE its

order denying the motion and enter a new order dismissing the § 3582(c)(2) motion for

lack of jurisdiction. Mr. Munoz’s motion for leave to proceed in forma pauperis on

appeal is GRANTED.


                                              Entered for the Court


                                              Monroe G. McKay
                                              Circuit Judge




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