                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                November 3, 2015
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                     No. 15-4111
                                             (D.C. No. 2:12-CR-00642-DAK-2)
 MARCOS ANTONIO AVALOS-                                  (D. Utah)
 CHAVEZ,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.


      After his conviction for federal drug charges, the district court turned to the

question of an appropriate sentence for Mr. Avalos-Chavez. It began by

calculating the advisory guidelines range. In doing so, the court took into account

— and gave Mr. Avalos-Chavez the benefit of — an anticipated amendment to the

guidelines that was not yet technically effective. The resulting advisory



      *
         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judgment is not binding precedent except under the doctrines of law of the case,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. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
guidelines suggested a sentence of between 70 and 87 months. But the district

court thought this much too much and ultimately imposed a 48-month sentence.

Now the amendment is effective and Mr. Avalos-Chavez seeks to reopen his

sentencing hearing. The district court refused this request, emphasizing that it

had already given him everything the amendment might. Even so, Mr. Avalos-

Chavez appeals.

      We see no grounds for reversal. Mr. Avalos-Chavez is of course correct

that 18 U.S.C. § 3582(c)(2) empowers a district court to modify a defendant’s

sentence if it was “based on a sentencing range that has subsequently been

lowered by the Sentencing Commission.” And Mr. Avalos-Chavez is also right

that his advisory sentencing range has now been lowered by the Commission. But

he fails to account for the fact that § 3582(c)(2) also states that a district court

may reduce a defendant’s sentence only “if such a reduction is consistent with

applicable policy statements issued by the Sentencing Commission.” And the

relevant policy statement here, U.S. Sentencing Guidelines Manual

§ 1B1.10(b)(2)(A)-(B), expressly provides (with one exception not relevant here)

that a court “shall not” reduce a defendant’s sentence below the amended advisory

guidelines range. Because the district court anticipated the amended advisory

guidelines range at his original sentencing hearing, because that range suggested a

sentence of at least 70 months, and because Mr. Avalos-Chavez received a




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sentence well below that, the district court properly recognized that he was

entitled to no further relief.

       Affirmed.

                                       ENTERED FOR THE COURT


                                       Neil M. Gorsuch
                                       Circuit Judge




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