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

                             FOR THE TENTH CIRCUIT                        September 19, 2019
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 19-7027
                                                 (D.C. No. 6:09-CR-00030-RAW-1)
GIOVANNI MARTINEZ,                                          (E.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HOLMES, MURPHY, and CARSON, Circuit Judges.
                 _________________________________

      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.

      In 2010, Appellant Giovanni Martinez was convicted of possession with intent

to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and of

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He

was sentenced to 188 months’ imprisonment on the drug charge and 120 months’

imprisonment on the firearm charge, both sentences to be served concurrently.

      *
         This order and judgment is not binding precedent, except under the doctrines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.
      On March 29, 2019, Martinez filed a motion seeking a reduction in his

sentence based on the First Step Act of 2018 (the “Act”). See Pub. L. 115-391, 132

Stat. 5194. The district court dismissed Martinez’s motion, concluding Martinez’s

crime of conviction is not a covered offense under the Act and, thus, a sentence

reduction was not authorized by 18 U.S.C. § 3582(c)(1)(B). See 18 U.S.C.

§ 3582(c)(1)(B) (permitting a district court to modify an imposed term of

imprisonment only “to the extent . . . expressly permitted by statute”). Proceeding

pro se and in forma pauperis, Martinez appeals and we exercise jurisdiction under 28

U.S.C. § 1291.

      Section 404 of “[t]he First Step Act of 2018 . . . permits a district court to

reduce a sentence based on the lower statutory sentencing ranges of the Fair

Sentencing Act of 2010.” United States v. Whittaker, No. 19-7014, 2019 WL

3381788, at *1 (10th Cir. July 26, 2019) (unpublished disposition). Retroactive

sentencing relief is available under the Act only if the defendant was sentenced for

violating “a Federal criminal statute, the statutory penalties for which were modified

by section 2 or 3 of the Fair Sentencing Act of 2010 that was committed before

August 3, 2010.” Pub. L. No. 115-391 § 404(a), 132 Stat. 5194, 5222. Relevant to

the matter before this court,1 section 2 of the Fair Sentencing Act amended 21 U.S.C.

§§ 841(b)(1)(A) and 841(b)(1)(B) by increasing “the drug amounts triggering



      1
        Section 3 of the Fair Sentencing Act eliminated the mandatory minimum
sentence for simple possession of crack cocaine. Pub. L. No. 111-220 § 3, 124 Stat.
2372, 2372.
                                           2
mandatory minimums for crack [cocaine] trafficking offenses from 5 grams to 28

grams in respect to the 5–year minimum [mandatory sentence] and from 50 grams to

280 grams in respect to the 10–year minimum.” Dorsey v. United States, 567 U.S.

260, 269 (2012); Pub. L. No. 111-220 § 2(a), 124 Stat. 2372, 2372. Martinez,

however, was convicted of violating 21 U.S.C. § 841(b)(1)(C), a statutory provision

that criminalizes possession with intent to distribute crack cocaine, irrespective of

quantity. The Fair Sentencing Act had no effect on § 841(b)(1)(C) and, thus,

Martinez’s crime of conviction is not a “covered offense” under the Act. See Pub. L.

No. 115-391 § 404(a), 132 Stat. 5194, 5222 (defining “covered offense”).

Accordingly, the district correctly concluded it lacked jurisdiction to reduce

Martinez’s sentence under the Act. See United States v. Green, 405 F.3d 1180, 1184

(10th Cir. 2005) (“A district court is authorized to modify a [d]efendant’s sentence

only in specified instances where Congress has expressly granted the court

jurisdiction to do so . . . .” (quotation omitted)).

       The district court’s dismissal of Martinez’s § 3582(c)(1)(B) motion for lack of

jurisdiction is affirmed. Having concluded the Act does not authorize the

modification of Martinez’s sentence under § 3582(c)(1)(B), this court lacks

jurisdiction to consider the other challenges to his sentence raised by Martinez for the




                                              3
first time in this appeal. See United States v. Spaulding, 802 F.3d 1110, 1121 & n.11

(10th Cir. 2015).



                                          Entered for the Court


                                          Michael R. Murphy
                                          Circuit Judge




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