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

                             FOR THE TENTH CIRCUIT                              March 4, 2016
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                              No. 15-8122
v.                                                  (D.C. No. 1:11-CR-00196-ABJ-5)
                                                                (D. Wyo.)
JULIAN BELTRAN,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

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

       Julian Beltran appeals from the denial of his motion to reduce his sentence under

Amendment 782 of the United States Sentencing Guidelines (“U.S.S.G.” or

“Guidelines”) and 18 U.S.C. § 3582(c). Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm.




       *
         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 This order and judgment is not binding precedent,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.
                                   I. BACKGROUND

       In September 2011, a superseding indictment charged Mr. Beltran with conspiracy

to traffic in methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and

846. In May 2012, Mr. Beltran entered a plea agreement under Federal Rule of Criminal

Procedure 11(c)(1)(C), which permits parties to “agree that a specific sentence or

sentencing range is the appropriate disposition of the case, or that a particular provision

of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not

apply (such a recommendation or request binds the court once the court accepts the plea

agreement).” In the plea agreement, Mr. Beltran stipulated he conspired to possess with

intent to distribute 500 grams or more of methamphetamine and he was subject to an

aggravating role enhancement under the Guidelines. Notwithstanding the enhancement

and the advisory Guidelines sentencing range, the agreement stated the parties agreed to a

sentence of 120 months.

       After Mr. Beltran agreed to the guilty plea, the United States Probation Office

prepared a presentence report stating the statutory sentencing range was ten years to life

and the advisory Guidelines sentencing range was 135 to 168 months. The district court

sentenced him to 120 months.

       In 2014, the Sentencing Commission promulgated Amendment 782, which

provides a retroactive two-level reduction for drug offenses involving many of the

controlled substances listed in the Guidelines’ Drug Quantity Table in U.S.S.G.

§ 2D1.1(c), including methamphetamine. U.S.S.G. app. C suppl., Amends. 782, 788.

Mr. Beltran moved for a sentence reduction under § 3582(c)(2), seeking a two-level


                                             -2-
reduction from his sentence. The district court dismissed Mr. Beltran’s motion because

his sentence did not qualify for a reduction under § 3582(c)(2). Mr. Beltran appealed.

                                      II. DISCUSSION

                     A. Standard of Review and Legal Background

       The scope of a district court’s authority under § 3582(c)(2) is a question of law we

review de novo. United States v. Graham, 704 F.3d 1275, 1277 (10th Cir. 2013).

       “Federal courts generally lack jurisdiction to modify a term of imprisonment once

it has been imposed.” Id. Section 3582(c)(2) is an exception to that rule: it gives courts

jurisdiction and discretion to “reduce the term of imprisonment, after considering the

factors set forth in section 3553(a) to the extent that they are applicable, if such a

reduction is consistent with applicable policy statements issued by the Sentencing

Commission.”

       A federal court lacks jurisdiction to modify a sentence under § 3582(c)(2) when a

defendant has entered into a Rule 11(c)(1)(C) plea agreement and the district court has

imposed a sentence that is not based on a Guidelines sentencing range. Id. at 1278; see

also United States v. Jones, No. 15-2128, 2015 WL 8757254, at *2 (10th Cir. Dec. 15,

2015) (unpublished) (“Because [the defendant] entered into a rule 11(c)(1)(C) plea

agreement, we must determine whether his sentence was based on the sentencing range

that has since been lowered, a question that goes to . . . the district court’s jurisdiction

under 18 U.S.C. § 3582(c)(2).”).




                                               -3-
       In Freeman v. United States, 131 S. Ct. 2685 (2011), Justice Sotomayor wrote a

concurring opinion that states the controlling holding.1 She explained that federal courts

have jurisdiction to consider a sentence reduction in two situations when the defendant

has entered a Rule 11(c)(1)(C) plea agreement: (1) when the agreement “call[s] for the

defendant to be sentenced within a particular Guidelines sentencing range,” or (2) when

the agreement “provide[s] for a specific term of imprisonment—such as a number of

months—but also make[s] clear that the basis for the specified term is a Guidelines

sentencing range applicable to the offense to which the defendant pleaded guilty.”

131 S. Ct. at 2697-98.

                                      B. Analysis

       Mr. Beltran’s Rule 11(c)(1)(C) plea agreement does not meet either of the

situations outlined in Freeman. The agreement mentions the Guidelines twice. First, it

states, “The Defendant has been advised of § 1B1.3 of the Sentencing Guidelines

regarding use of relevant conduct in establishing sentence and has read the advisement

regarding supervised release as stated in this Plea Agreement.” ROA, Vol. II at 41.

Second, it states, “[T]he evidence to be presented by the government at sentencing would

prove by a preponderance of the evidence that the Defendant is subject to an aggravating

       1
         In Graham, we explained that, along with Justice Sotomayor’s opinion, the
Freeman Court issued a plurality opinion and a dissenting opinion that each garnered
four votes. 704 F.3d at 1277. Justice Sotomayor’s concurring opinion “charted a middle
ground between the plurality and the dissent.” Id. at 1277-78. We stated, “Every federal
appellate court to consider the matter has reached the same conclusion, and we agree:
Justice Sotomayor’s concurrence is the narrowest grounds of decision and represents the
Court’s holding.” Id. at 1278.



                                            -4-
role enhancement under the U.S. Sentencing Guidelines, section 3B1.1.” Id. at 42. The

agreement then states, “However, since this plea agreement is made pursuant to Rule

11(c)(1)(C) of the Federal Rules of Criminal Procedure, the parties stipulate and agree

that a 120 month (10 year) term of imprisonment is a just and appropriate sentence given

all aggravating and mitigating factors.” Id.

       Even though the Guidelines sentencing range was 135 to 168 months, the parties

agreed to and the district court imposed a 120-month sentence. The agreement does not

mention a Guidelines sentencing range, let alone “call for the defendant to be sentenced

within a particular Guidelines sentencing range.” Freeman, 131 S. Ct. at 2697. And it

does not “make clear that the basis for the [120-month] term is a Guidelines sentencing

range applicable to the offense to which the defendant pleaded guilty.” Id. Simply put, it

does not base the 120-month term on the Guidelines sentencing range of 135 to 168

months.

       We conclude Mr. Beltran’s Rule 11(c)(1)(C) plea agreement was not based on a

sentencing range that Amendment 782 has lowered. The district court therefore lacked

jurisdiction to consider the § 3582(c)(2) motion and properly dismissed it. See United

States v. White, 765 F.3d 1240, 1250 (10th Cir. 2014) (stating dismissal of a § 3582(c)(2)

motion, rather than denial on the merits, is appropriate when the district court lacks

jurisdiction).




                                               -5-
                                  III. CONCLUSION

      For the reasons stated, we affirm the district court’s dismissal of Mr. Beltran’s

motion.

                                             ENTERED FOR THE COURT,



                                             Scott M. Matheson, Jr.
                                             Circuit Judge




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