                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    October 26, 2015
                         FOR THE TENTH CIRCUIT                    Elisabeth A. Shumaker
                     _________________________________                Clerk of Court

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                       No. 15-6109
                                                (D.C. No. 5:98-CR-00083-R-1)
LUIS ALFREDO DELGADO,                                 (W. D. Oklahoma)

       Defendant-Appellant.
                   _________________________________

                         ORDER AND JUDGMENT *
                     _________________________________

Before GORSUCH, O’BRIEN, and BACHARACH, Circuit Judges.
                _________________________________


      This appeal involves the denial of relief under 18 U.S.C. § 3582(c). Under

this statute, a defendant can seek modification of a sentence based on a reduction

in the guideline range. Mr. Delgado invokes § 3582 based on the U.S. Sentencing

Commission’s adoption of Amendment 782, which increased the threshold

quantity required for a broad range of drug offenses. In light of the adoption of



*
       The parties have not requested oral argument, and the Court concludes that
oral argument would not materially aid our consideration of the appeal. See Fed.
R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal
based on the briefs.

      Our order and judgment does not constitute binding precedent except under
the doctrines of law of the case, res judicata, and collateral estoppel. Fed. R. App.
P. 32.1(a); 10th Cir. R. 32.1(A).
Amendment 782, Mr. Delgado asked the district court to reduce his sentence. The

district court refused and Mr. Delgado appeals.

      We affirm. As Mr. Delgado admits, Amendment 782 would not have

affected his guideline range. Before and after adoption of this amendment, the

guideline range would have been 292 to 365 months in prison.

      When the guideline range is not affected, the Sentencing Commission’s

policy statements prohibit the district court from reducing the sentence under

§ 3582(c). In light of these policy statements, the district court properly

disallowed a sentence reduction under § 3582(c). See U.S. Sentencing Guidelines

§ 1B1.10(a)(2)(B) (“A reduction in the defendant’s term of imprisonment is not

consistent with this policy statement and therefore is not authorized under 18

U.S.C. § 3582(c)(2) if . . . [a]n amendment . . . does not have the effect of

lowering the defendant’s applicable guideline range.”); see also United States v.

Sharkey, 543 F.3d 1236, 1239 (10th Cir. 2008) (stating that because Amendment

706 would not have affected the defendant’s guideline range, a sentence reduction

under § 3582(c) was properly denied).

      Mr. Delgado purports to rely on “the public policy and the purpose of

Amendment 782.” Appellant’s Opening Br. at 4. But Mr. Delgado does not say

how Amendment 782’s public policy or purpose would support a sentence

reduction. The amendment, by its terms, does not affect Mr. Delgado’s sentence.




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We cannot disregard the actual language of the amendment based on our

perception of the drafters’ “public policy” or “purpose.” See United States v.

Riehl, 779 F.3d 776, 778 (8th Cir. 2015) (per curiam) (rejecting a defendant’s

argument for reversal based on the district court’s failure to consider the policy

reasons underlying Amendment 782).

      Though Mr. Delgado couches his argument in terms of “public policy” and

“purpose,” he is actually arguing that the original sentence was unconstitutional

because the district court did not obtain jury findings on “relevant conduct.”

Appellant’s Opening Br. at 5. That argument involves the original sentence, not a

reduction in the guideline range under Amendment 782.

      Mr. Delgado did not present this argument to the district court in his

motion for a sentence reduction. As a result, Mr. Delgado’s argument is forfeited.

See United States v. Lamirand, 669 F.3d 1091, 1098-99 n.7 (10th Cir. 2012).

Ordinarily, we would apply the plain-error standard of review. See United States

v. Dryden, 563 F.3d 1168, 1170 (10th Cir. 2009). But Mr. Delgado has not argued

for plain error. As a result, we decline to consider Mr. Delgado’s argument. See

Lamirand, 669 F.3d at 1098-99 n.7.




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      In these circumstances, we affirm the district court’s denial of relief under

§ 3582(c).


                                       Entered for the Court



                                       Robert E. Bacharach
                                       Circuit Judge




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