                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              MAR 3 2004
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                       No. 03-7095
                                                          (E.D. Okla.)
 HAROLD GLEN CLAYTON,                                (D.Ct. No. 98-CR-25-S)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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          This order and judgment is not binding precedent except under the doctrines of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. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       Harold G. Clayton, a litigant and federal inmate at a correctional facility in

Oklahoma appearing pro se, appeals the district court’s dismissal of his motion,

filed pursuant to 18 U.S.C. § 3582(c)(2), seeking a reduction of his 324-month

sentence. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.



       Mr. Clayton pled guilty, under Federal Rule of Criminal Procedure

11(a)(2), to conspiracy to possess with intent to distribute methamphetamine in

violation of 21 U.S.C. § 846; to a money laundering conspiracy in violation of 18

U.S.C. § 1956(h); and to unlawful removal of vehicle identification numbers in

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

WL 1079627 at *1 (10th Cir. Nov. 30, 1999) (unpublished opinion) (Clayton I). 1

The district court accepted the plea and sentenced him to 324 months

imprisonment on the conspiracy to possess count, sixty months on the vehicle



       1
         Although Mr. Clayton entered into a conditional Rule 11 plea agreement,
nothing in the record or briefs suggests the plea agreement contained a stipulated term of
sentence. See also Clayton I, at *3 (indicating Mr. Clayton entered into a verbal plea
presented to the court, in which the government did not make any promises on the
sentence term). As a result, Mr. Clayton’s sentence of 324 months appears to be based on
the United States Sentencing Guidelines (Sentencing Guidelines), and not on any plea
agreement as to the term of sentence. See United States v. Trujeque, 100 F.3d 869, 870-
71 (10th Cir. 1996) (holding the federal courts lack jurisdiction to consider a § 3582(c)(2)
motion when the term of sentence is stipulated to in a valid Rule 11 plea agreement and
not based on a sentencing range subsequently lowered by the United States Sentencing
Commission (Sentencing Commission)).


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

all to run concurrently. This court affirmed Mr. Clayton’s conviction on direct

appeal. See Clayton I, at *4. Thereafter, Mr. Clayton filed a 28 U.S.C. § 2255

motion to vacate, set aside, or correct his sentence pursuant to Apprendi v. New

Jersey, 530 U.S. 466 (2000), on grounds his indictment did not include a drug

quantity amount. See United States v. Clayton, 2002 WL 31124416 at *1 (10th

Cir. Sept. 26, 2002) (unpublished opinion) (Clayton II). The district court denied

the motion; this court affirmed, concluding his Apprendi claims were barred, in

part, under United States v. Mora, 293 F.3d 1213, 1218-19 (10th Cir.), cert.

denied, 537 U.S. 961 (2002), which determined Apprendi is not retroactively

applicable to habeas petitions. See Clayton II, at *1.



      Mr. Clayton then filed the instant § 3582(c)(2) motion to modify his 324-

month sentence. He argued Sentencing Commission Amendment 613 to the

sentencing guidelines reduced the sentencing range applicable to his term of

imprisonment. Even though he did not cite Apprendi in support of his appeal, Mr.

Clayton also renewed his argument, raised during his § 2255 proceeding, that his

sentence must be reduced to the twenty-year maximum sentence prescribed in 21

U.S.C. § 841(b)(1)(C) because his indictment did not include a drug quantity

amount.


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       The district court denied Mr. Clayton’s § 3582(c)(2) motion, explaining

Amendment 613 does not lower the applicable guideline because it only addresses

the issue of whether admissions, made by a defendant during a guilty plea

hearing, can be considered a stipulation under Sentencing Guideline § 1B1.2. 2

The district court also explained § 3582(c)(2) can only apply if Mr. Clayton’s

term of imprisonment is based on a sentencing range subsequently reduced by the

Sentencing Commission, and the reduction is consistent with the applicable policy

statement. The district court noted Sentencing Guideline § 1B1.10(c), which

contains the applicable policy statement, explicitly states which amendments are

covered, and does not include Amendment 613, thereby precluding Mr. Clayton

relief. See U.S.S.G. § 1B1.10 (c), and cmt. n.2. The district court also rejected

Mr. Clayton’s Apprendi drug quantity challenge, pointing out this court

previously rejected it on appeal of his § 2255 action, and Mr. Clayton improperly

brought his Apprendi claim under § 3582(c)(2), which applies only to situations

where a sentencing range is lowered.




       2
         Amendment 613 states that a factual statement or stipulation contained in a
written or oral plea agreement is only considered a stipulation if both the defendant and
the government explicitly agree. U.S.S.G., App. C, Vol. II, at 115-16.


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      Mr. Clayton appeals the district court’s decision, making the same or

similar argument as in his § 3582(c)(2) motion, claiming Amendment 613 applies

for the purpose of reducing his sentence from 324 months to the twenty-year

maximum prescribed by 21 U.S.C. § 841(b)(1)(C). In so doing, he contends

Amendment 613 should be given retroactive application because it is a

“clarifying” amendment rather than a substantive amendment, and the maximum

statutory sentence of twenty years must be applied because neither his indictment

nor his plea agreement included a drug quantity amount. He also contends he

never raised an Apprendi argument before the district court.



      We review de novo the district court’s interpretation of a statute or the

sentencing guidelines. United States v. Smartt, 129 F.3d 539, 540 (10th Cir.

1997). When a “motion for sentence reduction is not a direct appeal or a

collateral attack under 28 U.S.C. § 2255, the viability of [the] motion depends

entirely on 18 U.S.C. § 3582(c).” Id. (quotation marks, citation, and alteration

omitted). Section 3582(c) allows the court to modify a sentence in only three

limited circumstances: 1) on motion of the Director of the Bureau of Prisons if

special circumstances exist; 2) if otherwise expressly permitted by statute or

Federal Rule of Criminal Procedure 35; or 3) if the sentencing range is

subsequently lowered by the Sentencing Commission. Id. at 540-41. As


                                         -5-
previously noted, Mr. Clayton’s motion is dependent on the last listed

circumstance – a reduction of the sentencing range applicable to him.



      Having reviewed the record and briefs on appeal, we conclude the district

court did not err in denying Mr. Clayton’s motion to modify his sentence under

§ 3582(c)(2). As the district court aptly explained, Amendment 613 is not listed

in § 1B1.10(c), and therefore a reduction of his sentence under § 3582(c)(2) is

“not authorized.” See Torres-Aquino, 334 F.3d 939, 941 (10th Cir. 2003). We

also reject Mr. Clayton’s contention on appeal that he is not raising an Apprendi-

type argument. Regardless of how he wishes to characterize it, Mr. Clayton

continues to argue his sentence should be reduced to twenty years under 21

U.S.C. § 841 because his indictment and plea agreement did not contain a drug

quantity amount. His argument is unpersuasive for several reasons. First, as the

district court pointed out, this court previously rejected his claim during the

appeal of his § 2255 action. See Clayton II, at *2. Second, as the district court

properly concluded, the argument raised by Mr. Clayton concerning Amendment

613 is not one which relates to the lowering of a sentence range as required by

§ 3582(c)(2). Moreover, dismissal of his motion on such grounds is consistent

with other circuit court holdings that Apprendi-type claims cannot be brought

under 18 U.S.C. § 3582(c)(2) for modification of a sentence, because they do not


                                          -6-
relate to a lowering of sentence ranges. See United States v. McBride, 283 F.3d

612, 615-16 & n.2 (3d Cir.) (relying on similar holdings by the Second, Fourth,

and Seventh Circuits, and various district courts, that Apprendi claims may not be

raised under § 3582(c)(2).), cert. denied, 537 U.S. 864 (2002). Finally, Mr.

Clayton’s own pleadings contradict his contention on appeal that his plea

agreement did not contain a drug quantity amount. Specifically, Mr. Clayton

admits in one district court pleading that the government and his counsel agreed

to a total drug amount of 185.5 pounds of methamphetamine for the purpose of

calculating his sentence under the Sentencing Guidelines. Under the

circumstances presented, the drug quantity was explicitly agreed to, despite Mr.

Clayton’s later description of events.



      We also reject Mr. Clayton’s contention Amendment 613 should be given

retroactive application because it is a “clarifying” amendment rather than a

substantive amendment.

      The question of whether an amendment to the guidelines is clarifying
      or substantive goes to whether a defendant was correctly sentenced
      under the guidelines in the first place, not to whether a correct
      sentence has subsequently been reduced by an amendment to the
      guidelines and can be modified in a proceeding under § 3582(c)(2).

Torres-Aquino, 334 F.3d at 941. As a result, the clarifying question raised by Mr.

Clayton may not be reached in addressing his § 3582 motion, or his appeal of its


                                         -7-
denial. Id.



      Thus, for substantially the same reasons stated by the district court in its

Order filed August 22, 2003, and reasons stated herein, we AFFIRM the district

court’s decision denying a sentence reduction under 18 U.S.C. § 3582(c)(2).



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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