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

                             FOR THE TENTH CIRCUIT                          July 28, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 15-5100
                                                  (D.C. No. 4:00-CR-00033-TCK-1)
JOHN THOMAS FISHER,                                          (N.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
                 __________________________________

       Defendant John Fisher moved for a reduced sentence under 18 U.S.C.

§ 3582(c)(2). The district court denied the motion and Defendant appeals. We have

jurisdiction under 28 U.S.C. § 1291. We agree with the district court’s reasoning but

vacate the order denying the motion and remand for entry of an order dismissing the

motion for lack of jurisdiction.

       On September 20, 2000, a jury convicted Defendant on five counts of federal drug

and weapons charges. One count carried a mandatory 10-year sentence to be served

*
 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 This order and judgment is not binding precedent, except under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.
consecutively to his sentence on the other counts. The presentence report (PSR) prepared

by the probation office calculated a provisional offense level of 24 for the other

convictions. But because of prior felony convictions Defendant qualified as a career

offender and received an adjusted offense level of 32, leading to a guideline sentencing

range of 210–262 months’ imprisonment for the four convictions. The district court

adopted the PSR and sentenced Defendant to 330 months’ imprisonment, the bottom of

the combined guideline range.

       The Sentencing Commission later promulgated Amendment 782, which applies

retroactively and reduces by two levels many of the base offense levels for drug offenses

assigned by the drug-quantity table at USSG § 2D1.1(c). Defendant’s motion under

§ 3582(c)(2) is based on the amendment.

       It is settled, however, that an amendment to the drug-quantity table at § 2D1.1(c)

provides no relief to a defendant sentenced as a career offender under USSG § 4B1.1(b).

See, e.g., United States v. Sharkey, 543 F.3d 1236, 1239 (10th Cir. 2008) (Amendment

706); United States v. Bowman, No. 15-5086, 2016 WL 1598745, at *1 (10th Cir. Apr.

21, 2016) (Amendment 782). A court may reduce a sentence under § 3582(c) only if that

reduction is consistent with the policy statement at USSG § 1B1.10. See 18 U.S.C.

§ 3582(c)(2). And under that policy statement a court may not reduce a sentence based

on an amendment to the Sentencing Guidelines if that amendment “does not have the

effect of lowering the defendant’s applicable guideline range.” USSG § 1B1.10(a)(2)(B).

Although Amendment 782 reduced Defendant’s provisional base offense level, it did not

lower his final offense level of 32, which was required by his career-offender status. See

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USSG § 4B1.1(b) (“[I]f the offense level for a career offender from the table in this

subsection is greater than the offense level otherwise applicable, the offense level from

the table in this subsection shall apply.”). The district court therefore lacked authority to

reduce Defendant’s term of imprisonment. It properly ruled that Defendant was not

entitled to relief, but it should have dismissed the motion for lack of jurisdiction instead

of denying the motion. See United States v. Graham, 704 F.3d 1275, 1279 (10th Cir.

2013) (if a sentence reduction is not authorized by §3582, “dismissal rather than denial is

the appropriate disposition.”); United States v. White, 765 F.3d 1240, 1242 (10th Cir.

2014) (“While . . . the district court did not err in holding that [the defendant] was

ineligible for a sentence reduction under § 3582(c)(2), his motion should have been

dismissed, not on the merits, but on jurisdictional grounds.”).

       Defendant also argues that the court sentenced him incorrectly by wrongly

classifying him as a career offender. But § 3582(c)(2) does not grant the district court

jurisdiction to hear a challenge to the initial propriety of a sentence. A district court may

modify a sentence “only in specified instances where Congress has expressly granted the

court jurisdiction to do so.” United States v. Blackwell, 81 F.3d 945, 947 (10th Cir.

1996). “An argument that a sentence was incorrectly imposed should be raised on direct

appeal or in a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. §

2255,” not via § 3582(c)(2). United States v. Torres-Aquino, 334 F.3d 939, 941 (10th

Cir. 2003). Section 3582(c)(2) grants jurisdiction only “in the case of a defendant who

has been sentenced to a term of imprisonment based on a sentencing range that has

subsequently been lowered by the Sentencing Commission.” 28 U.S.C. § 3582(c)(2).

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      We VACATE the order denying Defendant’s motion and REMAND with

instructions to DISMISS for lack of jurisdiction. Defendant’s Motion for Release

Pending Appeal is DENIED.

                                            Entered for the Court


                                            Harris L Hartz
                                            Circuit Judge




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