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

                             FOR THE TENTH CIRCUIT                            April 1, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 15-6167
                                                   (D.C. No. 5:09-CR-00089-R-1)
JASON DEANGELO BRIGGS,                                     (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, LUCERO, and McHUGH, Circuit Judges.
                   _________________________________

      Defendant-Appellant Jason Deangelo Briggs appeals the district court’s denial

of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). He argues that

his sentence should be reduced because of Amendment 782 to the United States

Sentencing Guidelines, which lowered the offense levels for certain drug offenses,

even though he received a sentence below the amended guideline range. Exercising

jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we affirm.



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
      In 2009 Mr. Briggs pleaded guilty to a drug offense and a related firearm

offense pursuant to a plea agreement. He was sentenced under the 2008 version of

the Sentencing Guidelines, which yielded for the drug offense a guideline range of

135 to 168 months. The district court granted a downward variance and imposed an

84-month term on that offense and a consecutive 60-month term on the firearm

offense for a total sentence of 144 months.

      In June 2015 Mr. Briggs, proceeding pro se, moved for a sentence reduction

based on Amendment 782, which became effective in November 2014. He argued

that because his original sentence was 51 months below the low end of the guideline

range applicable when he was sentenced, the district court had discretion to reduce

his sentence to 51 months below the amended guideline range. The government

responded by arguing that Mr. Briggs was ineligible for a sentence reduction under

§ 3582(c)(2) because he received a sentence that was below the amended guideline

range and did not fall within the exception for defendants who provided substantial

assistance to authorities. See U.S.S.G. § 1B1.10(b)(2). The district court denied the

motion without providing a reason, and this appeal followed.

      On appeal Mr. Briggs argues that retrospective application of the current

version of U.S.S.G. § 1B1.10(b)(2) to his case violates the Ex Post Facto Clause.

U.S. Const., art. I, § 9, cl. 3. We disagree.

      We review de novo the scope of a district court’s authority under § 3582(c)(2)

to resentence a defendant. United States v. Gay, 771 F.3d 681, 685 (10th Cir. 2014);

see also United States v. Sharkey, 543 F.3d 1236, 1238 (10th Cir. 2008) (“We review

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de novo the district court’s interpretation of a statute or the sentencing guidelines.”

(internal quotation marks omitted)). We also review de novo whether application of

a sentencing guideline violates the Ex Post Facto Clause. United States v. Weiss,

630 F.3d 1263, 1275 (10th Cir. 2010). Where, as here, a defendant does not raise an

ex post facto argument before the district court, we review for plain error. See

United States v. Sullivan, 255 F.3d 1256, 1258 (10th Cir. 2001). “To constitute plain

error, the error must have been both obvious and substantial.” Id. (internal quotation

marks omitted).

      Mr. Briggs’s argument is premised on Amendments 759 and 782 to the

Sentencing Guidelines, which were implemented after he was sentenced in 2009.

Amendment 759, which took effect in November 2011, altered § 1B1.10 by limiting

who was eligible for a sentence reduction based on subsequent amendments to the

Sentencing Guidelines. Before the amendment, a defendant could be eligible for a

sentence reduction even if he or she received an original sentence that was below the

amended guideline range:

      If the original term of imprisonment imposed was less than the term of
      imprisonment provided by the guideline range applicable to the
      defendant at the time of sentencing, a reduction comparably less than
      the amended guideline range determined under subdivision (1) of this
      subsection may be appropriate. However, if the original term of
      imprisonment constituted a non-guideline sentence . . . a further
      reduction generally would not be appropriate.

U.S.S.G. § 1B1.10(b)(2)(B) (Nov. 2008). This exception applied only to “covered

amendments” then listed in the Sentencing Guidelines. Id. § 1B1.10(c). Of course



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that list did not include Amendment 782 as it did not take effect until three years

later.

         As amended by Amendment 759, § 1B1.10 allows reduced sentences for a

defendant who received an original sentence that was below the amended guideline

range only if he or she provided substantial assistance to authorities:

         If the term of imprisonment imposed was less than the term of
         imprisonment provided by the guideline range applicable to the
         defendant at the time of sentencing pursuant to a government motion to
         reflect the defendant’s substantial assistance to authorities, a reduction
         comparably less than the amended guideline range determined under
         subdivision (1) of this subsection may be appropriate.

U.S.S.G. § 1B1.10(b)(2)(B) (Nov. 2014). This exception also applies only to

“covered amendments” listed in the Sentencing Guidelines. Id. § 1B1.10(d). That

list includes Amendment 782.

         Amendment 782 took effect in November 2014, reducing by two the base

offense level for certain drug offenses, including Mr. Briggs’s.

         An ex post facto violation occurs when “a given change in law presents a

sufficient risk of increasing the measure of punishment attached to the covered

crimes.” Peugh v. United States, 133 S. Ct. 2072, 2082 (2013) (internal quotation

marks omitted); see also Weiss, 630 F.3d at 1276 (“At sentencing, an ex post facto

violation occurs when the district court applies a guideline to an event occurring

before its enactment, and the application of that guideline disadvantages the

defendant by . . . increasing the punishment for the crime.” (internal quotation marks

omitted)). We conclude Amendments 759 and 782, as applied to Mr. Briggs’s


                                              4
sentence, do not violate the Ex Post Facto Clause because they do not – either

individually or in combination – retroactively increase the punishment for his

offenses.

      Moreover, applying the pre-Amendment 759 version of § 1B1.10 would not

help Mr. Briggs because it never encompassed Amendment 782 for the obvious

reason that it did not yet exist. When § 1B1.10 was amended in 2011, all later

reductions in the Sentencing Guidelines were subject to that version, not to any

previous version. See Weiss, 630 F.3d at 1275 (“Under the one-book rule, the

Guidelines Manual in effect on a particular date shall be applied in its entirety.”

(internal brackets and quotation marks omitted)); see also U.S.S.G. § 1B1.11(b)(2)

(“The court shall not apply . . . one guideline section from one edition of the

Guidelines Manual and another guideline section from a different edition of the

Guidelines Manual.”).

      In United States v. Kurtz, --- F.3d ---, 2016 WL 1212066 (10th Cir. Mar. 29,

2016), published after briefing was completed in this case, this court rejected the

legal theories advanced by Mr. Green regarding these amendments. Other circuits

have also concluded that applying Amendment 759 as the district court did is not an

ex post facto violation. See, e.g., United States v. Waters, 771 F.3d 679, 681 (9th

Cir. 2014); United States v. Diggs, 768 F.3d 643, 645-46 (7th Cir. 2014); United

States v. Colon, 707 F.3d 1255, 1258-59 (11th Cir. 2013).

      We discern no error, much less plain error.



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The district court’s order is affirmed.


                                      Entered for the Court

                                      Mary Beck Briscoe
                                      Circuit Judge




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