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

                            FOR THE TENTH CIRCUIT                           August 8, 2016
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 16-4025
                                                  (D.C. No. 2:13-CR-00776-DB-1)
BENJAMIN SMITH,                                              (D. Utah)

      Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before KELLY, McKAY, and MORITZ, Circuit Judges.
                  _________________________________

      In February 2015, Benjamin Smith pled guilty to possession with intent to

distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1), admitting that his

crime involved at least 5 grams, but less than 20 grams, of actual methamphetamine.

Based on his Fed. R. Crim. P. 11(c)(1)(C) plea agreement, the district court imposed

a 180-month prison sentence.1


      *
         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
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 This order and judgment is not binding precedent,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. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
       1
         Under Rule 11(c)(1)(C), if the defendant and the government agree to a
specific sentence in the plea agreement, “such a recommendation or request binds the
court once the court accepts the plea agreement.” Here, Smith pled guilty to the
      After sentencing, a probation officer prepared Smith’s Presentence

Investigation Report (PSR) and calculated that Smith’s base offense level was 24 and

his total offense level was 23. When coupled with Smith’s criminal history category

of III, this offense level resulted in a recommended Guidelines range of 57 to 71

months in prison. See U.S.S.G. ch. 5, pt. A. But the probation officer also noted that

Smith faced a statutory mandatory minimum sentence of ten years, resulting in a

recommended Guidelines sentence of 120 months in prison. See U.S.S.G. § 5G1.1(b)

(“Where a statutorily required minimum sentence is greater than the maximum of the

applicable [G]uideline[s] range, the statutorily required minimum sentence shall be

the [G]uideline[s] sentence.”).

      Smith later asked the court to appoint an attorney to assist him in filing a

motion to reduce his sentence in light of Amendment 782 to the Guidelines, which

reduced by two most of the base offense levels in the Guidelines’ Drug Quantity

Table. See U.S.S.G. app. C, amend. 782; see also 18 U.S.C. § 3582(c)(2) (permitting

court to modify defendant’s sentence if it was “based on a sentencing range that has

subsequently been lowered by the Sentencing Commission”). The district court

construed Smith’s request as a motion to reduce his sentence, and denied that motion

based on a finding that Smith was sentenced “pursuant to a Rule 11(c)(1)(C)

agreement [that] did not rest on the applicable [G]uideline[s] range.” R. vol. 1, 166;



§ 841(a)(1) charge and agreed to a 180-month prison sentence in exchange for the
government dropping four other criminal counts, including a charge of using and
carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c).
In light of Smith’s previous § 924(c) conviction, the new § 924(c) charge would have
carried a mandatory minimum sentence of 25 years in prison. § 924(c)(1)(C)(i).
                                           2
see United States v. Graham, 704 F.3d 1275, 1278 (10th Cir. 2013) (explaining that a

defendant may be eligible for a sentence reduction if his Rule 11(c)(1)(C) plea

agreement “is based on a Guideline[s] sentencing range that is retroactively

amended”). Proceeding pro se,2 Smith appeals.

      We review de novo the district court’s conclusion that Smith isn’t eligible for

a sentence reduction, see United States v. Rhodes, 549 F.3d 833, 837 (10th Cir.

2008), and now affirm.

      Smith insists that his plea agreement was—contrary to the district court’s

finding—based on a Guidelines sentencing range. In support, Smith explains that he

had an oral agreement with the government that his sentence would be “based, in

part, on” the Guidelines sentencing range of 57 to 71 months in prison. Aplt. Br. 2.

      But even if we assume that Smith’s plea agreement was based on this

Guidelines range, he is nevertheless ineligible for a sentence reduction. Effective

November 2014, Amendment 782 lowered the base offense level for at least 5 grams,

but less than 20 grams, of actual methamphetamine from 26 to 24. See U.S.S.G. app.

C, amend. 782. Here, the probation officer used this reduced base offense level when

calculating Smith’s Guidelines range of 57 to 71 months. See Supp. R. vol. 2, 5

(sealed) (calculating Smith’s base offense level of 24 using “[t]he 2014 Guidelines

Manual, incorporating all [G]uideline[s] amendments”); U.S.S.G. § 2D1.1(c)(8)

(listing 24 as current base offense level for at least 5 grams, but less than 20 grams,

of actual methamphetamine). Thus, even if we assume that Smith’s Rule 11(c)(1)(C)

      2
       We liberally construe Smith’s pro se filings, but we won’t act as his
advocate. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
                                         3
agreement was based on the Guidelines range of 57 to 71 months, that range hasn’t

“subsequently been lowered by” Amendment 782. 18 U.S.C. § 3582(c)(2).

Accordingly, we agree with the government that Smith is ineligible for a sentence

reduction. See id.; United States v. Curtis, 252 F. App’x 886, 887 (10th Cir. 2007)

(unpublished) (explaining that because the relevant amendment “did not subsequently

lower [defendant’s] sentencing range, . . . the district court had no jurisdiction to

consider a modification to his sentence under 18 U.S.C. § 3582(c)(2)”).

      Nevertheless, the district court should have dismissed—rather than denied—

Smith’s motion. See United States v. White, 765 F.3d 1240, 1250 (10th Cir. 2014).3

Accordingly, we vacate the district court’s order denying Smith’s motion and remand

with directions to enter an order dismissing the motion for lack of jurisdiction. We

also deny Smith’s motion to proceed in forma pauperis and his motion for

appointment of counsel.


                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




      3
        Although “it is settled in this circuit that a district court must dismiss a
§ 3582(c)(2) motion for lack of jurisdiction when a defendant is ineligible for a
reduced sentence,” other circuits take a different approach. United States v. Moya-
Breton, No. 15-4185, 2016 WL 3435465, at *2 n.3 (10th Cir. June 21, 2016)
(unpublished) (citing cases from the Seventh and Second Circuits concluding that
defendant’s ineligibility for relief under § 3582(c)(2) isn’t a jurisdictional defect).
Moreover, “in fairness to the district court, we note that the standard form for an
order disposing of a § 3582(c)(2) motion—the AO 247—doesn’t provide a check box
for dismissal.” Id.
                                             4
