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

                             FOR THE TENTH CIRCUIT                          May 8, 2018
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 17-7015
                                                (D.C. No. 6:14-CR-00014-RAW-1)
JAMES HOWARD JENKINS, II,                                  (E.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

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

      James Howard Jenkins II appeals the district court’s denial of his motion to

reduce his sentence under 18 U.S.C. § 3582(c)(2). We conclude that Jenkins isn’t

eligible for a sentence reduction under § 3582(c)(2), because he wasn’t sentenced

based on a sentencing range later lowered by the Sentencing Commission. That

means Jenkins has failed to establish jurisdiction under § 3582(c)(2). Exercising

jurisdiction under 28 U.S.C. § 1291, we vacate the district court’s order denying


      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Jenkins’s motion on the merits, and remand to the district court to dismiss the motion

for lack of jurisdiction.

                                    BACKGROUND

       During a traffic stop in October 2013, police officers searched Jenkins’s car

and found 342.8 grams of a white crystal substance (later determined by the U.S.

Drug Enforcement Administration laboratory to include 271.3 grams of actual

methamphetamine). In February 2014, a federal grand jury in the Eastern District of

Oklahoma indicted Jenkins on a charge of possessing, with intent to distribute, 50

grams or more of a mixture containing a detectable amount of methamphetamine, see

21 U.S.C. § 841(a)(1), (b)(1)(B).

       On May 23, 2013, the parties filed a plea agreement under Fed. R. Crim. P.

11(c)(1)(C). In this plea agreement, the parties agreed—subject to the court’s

acceptance—to apply U.S.S.G. § 2D1.1(c)(7), which set a base offense level of 26.

At the change-of-plea hearing that same day, the government estimated the advisory

guideline range to be 92 to 115 months of imprisonment, referencing U.S.S.G. §

2D1.1(c)(7).

       On November 6, 2013, at the sentencing hearing, the government explained

that it had agreed to a base offense level of 26 in anticipation of Amendment 782’s

becoming law and reducing by two levels the base offense level for Jenkins’s

methamphetamine weight. Otherwise, if the parties had used the 2013 sentencing

guidelines manual, the 342.8 grams of a mixture containing methamphetamine would

have required a base offense level of 28. See U.S. Sentencing Guidelines Manual §

                                           2
2D1.1(c)(6) (U.S. Sentencing Comm’n 2013). The district court accepted the parties’

Rule 11(c)(1)(C) plea agreement, including the base offense level of 26.1

      As it turned out, Jenkins was sentenced days after Amendment 782 became

effective on November 1, 2014. See U.S. Sentencing Guidelines Manual app. C,

amend. 782 (U.S. Sentencing Comm’n 2014). So had the district court declined the

binding plea agreement, Jenkins would ultimately have received the same benefit of a

two-level reduction to his base offense level, whether he later entered a nonbinding

plea agreement or even been convicted at trial. The district court sentenced Jenkins to

the low end of the sentencing range of 92 to 115 months (calculated by using total

offense level of 23 and criminal-history category of VI).

      In May 2015, Jenkins moved to reduce his sentence based on Amendment 782.

But, as stated, Jenkins had already received the benefit of this amendment. That

detail left Jenkins ineligible for relief under § 3582(c)(2) because he was not “a

defendant who has been sentenced to a term of imprisonment based on a sentencing

range subsequently lowered by the Sentencing Commission pursuant to 28 U.S.C. §

994(o).” 18 U.S.C. § 3582(c)(2). Otherwise stated, because Jenkins had already

gotten the benefit of Amendment 782’s two-level reduction, his advisory range

stayed the same after the amendment—92 to 115 months of imprisonment.



      1
        Jenkins struck a favorable deal. Had the government superseded his
indictment with the actual methamphetamine under 21 U.S.C. § 841(a)(1), (b)(1)(A),
and filed an information under 21 U.S.C. § 851, which it agreed not to do, Jenkins
would have faced a mandatory-minimum sentence of 240 months of imprisonment.

                                           3
      The district court denied Jenkins’s § 3582(c)(2) motion on a ground we later

determined improper—namely, that the “sentence was based upon a binding plea

agreement [under Fed. R. Crim. P. 11(c)(1)(C)] to a specific sentencing range of 92

to 115 months.” R. vol. 1 at 105; see also United States v. Jenkins, 668 F. App’x 852,

853 (10th Cir. 2016).

                                    DISCUSSION

      “We review the scope of a district court’s authority in resentencing under §

3582(c)(2) de novo.” United States v. Verdin-Garcia, 824 F.3d 1218, 1220–21 (10th

Cir. 2016). Federal courts generally lack jurisdiction to modify a sentence after it is

imposed, but they may do so when statutorily authorized. United States v. Graham,

704 F.3d 1275, 1277 (10th Cir. 2013).

      On remand, with neither the district court nor our court on appeal having yet

addressed or ruled on the jurisdictional question, the district court declined on the

merits to award relief under § 3582(c)(2). If we had jurisdiction to consider the

merits, we certainly could not say this was an abuse of discretion. But, as explained,

we have no jurisdiction to reach the merits. After all, a sentencing reduction under §

3582(c)(2) must be “consistent with applicable policy statements issued by the

Sentencing Commission.” 18 U.S.C. § 3582(c)(2). One such policy statement




                                            4
prohibits a sentence reduction “that is less than the minimum of the amended

guideline range.” U.S. Sentencing Guidelines Manual § 1B1.10(b)(2)(A).2

      Because this policy binds the district court, it is not authorized to reduce a

defendant’s sentence below the amended guideline range. United States v. Rhodes,

549 F.3d 833, 841 (10th Cir. 2008).

                                   CONCLUSION

      For these reasons, we vacate the district court’s order denying Jenkins’s

motion for a sentence reduction under § 3582(c)(2) and remand to the district court to

dismiss the motion for lack of jurisdiction.


                                               Entered for the Court


                                               Gregory A. Phillips
                                               Circuit Judge




      2
         The policy includes an exception for when the government makes a motion to
reflect the defendant’s substantial assistance. U.S. Sentencing Guidelines Manual §
1B1.10(b)(2)(B). Here, the government hasn’t made such a motion.

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