                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        May 13, 2010
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                        TENTH CIRCUIT


 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                                 No. 09-6170
                                                    (D. Ct. No. 5:07-CR-00032-R-1)
 JASON. DEJEAR,                                              (W.D. Okla.)

                Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, TACHA, and O’BRIEN, Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance 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.

       Defendant-appellant Jason Dejear appeals from the district court’s denial of his

motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2). We have jurisdiction

under 28 U.S.C. § 1291 and AFFIRM.




       *
        This order and judgment is not binding precedent except under the doctrines of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.
                                   I. BACKGROUND

       Mr. Dejear was convicted of one count of possession of marijuana in violation of

21 U.S.C. § 844 and one count of being a felon in possession of a firearm in violation of

18 U.S.C. § 922(g)(1).1 A presentence investigation report (“PSR”) calculated Mr.

Dejear’s base offense level for the firearm conviction to be twenty-four under §

2K2.1(a)(2) of the 2006 United States Sentencing Guidelines Manual (“U.S.S.G.” or

“Guidelines”). The PSR then applied a four-level enhancement under U.S.S.G. §

2K2.1(b)(6) based on Mr. Dejear’s use of the firearm in connection with another felony

offense. Thus, Mr. Dejear received a total offense level of twenty-eight. The PSR then

determined that Mr. Dejear’s criminal history category was IV. Because the statutory

maximum sentence was 120 months’ imprisonment, see 18 U.S.C. § 924(a)(2) (setting

maximum sentence of ten years for knowing violations of § 922(g)), the resulting

Guidelines range was 110–120 months.

       On November 14, 2007, the district court adopted the PSR’s recommendations and

imposed concurrent sentences of twenty-four months’ imprisonment for the marijuana

conviction and 120 months’ imprisonment for the firearms conviction. After an

unsuccessful direct appeal in this court and the Supreme Court’s denial of his petition for

certiorari, Mr. Dejear filed the instant § 3582(c)(2) motion for modification of his

sentence. The district court denied his motion, concluding that “[t]he shortcoming in [Mr.

       1
       Mr. Dejear does not seek modification of his sentence for marijuana possession.
Therefore, our analysis is confined to Mr. Dejear’s sentence for being a felon in
possession of a firearm.

                                            -2-
Dejear]’s argument is that there have not been any applicable amendments to the

guidelines under which he was sentenced.” Mr. Dejear now appeals from this order.



                                    II. DISCUSSION

       “A district court does not have inherent authority to modify a previously imposed

sentence; it may do so only pursuant to statutory authorization.” United States v. Smartt,

129 F.3d 539, 540 (10th Cir. 1997) (quotations omitted). Under 18 U.S.C. § 3582(c),

courts are authorized to modify a previously imposed sentence in three limited

circumstances. Id. at 540–41. Only one of those circumstances is relevant to Mr.

Dejear’s appeal—that is, “when a defendant [] has been sentenced to a term of

imprisonment based on a sentencing range that has subsequently been lowered by the

Sentencing Commission . . . .” 18 U.S.C. § 3582(c)(2).

       Mr. Dejear contends that he is entitled to a sentence reduction under Amendments

599 and 709 to the Guidelines. These amendments, however, were both in effect prior to

Mr. Dejear’s sentencing. Indeed, Amendment 599 became effective in 2000, see

U.S.S.G., App. C, Vol. II, Amend. 599 at 69, and Amendment 709 became effective on

November 1, 2007, thirteen days before Mr. Dejear was sentenced. See U.S.S.G., Supp.

to App. C, Amend. 709 at 235. Accordingly, neither of these amendments subsequently

modified the Guidelines range under which Mr. Dejear was sentenced, and therefore the

district court lacked authority under § 3582(c)(2) to modify his sentence on these




                                           -3-
grounds.2

                                  III. CONCLUSION

      For the foregoing reasons we AFFIRM the district court’s order and DISMISS Mr.

Dejear’s appeal. We GRANT his request to proceed in forma pauperis on appeal.

                                         ENTERED FOR THE COURT,



                                         Deanell Reece Tacha
                                         Circuit Judge




      2
        Mr. Dejear’s various other claims challenging his sentence are not properly raised
in a § 3582(c)(2) motion. Therefore, we do not consider them here.

                                           -4-
