                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     March 28, 2017
                   UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                TENTH CIRCUIT                          Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                         No. 16-3306
 v.                                           (D.C. No. 2:10-CR-20129-KHV-1)
                                                          D. Kansas
 ANTONIO D. QUINN,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, MURPHY and MATHESON, Circuit Judges.



      Proceeding pro se, Antonio D. Quinn appeals the district court’s dismissal

of the Motion for Reduced Sentence he filed pursuant to 18 U.S.C. § 3582(c)(2).

In 2011, Quinn pleaded guilty to Count I of a superseding indictment charging

him with conspiracy to distribute and possess with intent to distribute more than


      *
        This order and judgment is not binding precedent except under the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.

     After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore,
submitted without oral argument.
five kilograms of cocaine and more than 280 grams of cocaine base. See 21

U.S.C. §§ 841(a)(1), 846. Quinn and the Government agreed to a 300-month

term of imprisonment. See Fed. R. Crim. P. 11(c)(1)(C) (permitting the parties to

a plea agreement to “agree that a specific sentence . . . is the appropriate

disposition of the case”). The district court accepted the plea and sentenced

Quinn to 300 months’ imprisonment, noting during the sentencing hearing that

the sentence was appropriate even though the advisory guidelines range was 360

months to life.

      On August 24, 2016, Quinn filed a § 3582(c)(2) motion, seeking a

modification of his sentence. He asserted he was entitled to a two-level reduction

in his offense level based on changes made to the United States Sentencing

Guidelines by Amendment 782. See USSG app. C, Amend. 782 (reducing by two

levels the base offense levels of crimes involving many of the controlled

substances listed in the Guidelines’ Drug Quantity Table). The district court

dismissed Quinn’s motion, concluding it lacked jurisdiction because Quinn’s

sentence was imposed pursuant to a binding plea agreement, not the Guidelines.

Thus, his advisory guidelines range is irrelevant and Amendment 782 is

inapplicable.

      This court reviews a district court’s denial of a § 3582(c)(2) motion for

abuse of discretion. United States v. Sharkey, 543 F.3d 1236, 1238 (10th Cir.

2008). In the course of that review, we apply a de novo standard to the district

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court’s interpretation of a statute or the Guidelines. Id. Section 3582(c)(2) gives

a district court the power to modify a defendant’s term of imprisonment only if

the defendant was originally sentenced “based on a sentencing range that has

subsequently been lowered by the Sentencing Commission.” The Supreme Court

has held that a sentence imposed pursuant to Rule 11(c)(1)(C) is based on the

Guidelines only when the plea agreement “expressly uses a Guidelines sentencing

range applicable to the charged offense to establish the term of imprisonment.”

Freeman v. United States, 131 S. Ct. 2685, 2695 (2011) (Sotomayor, J.,

concurring); United States v. Graham, 704 F.3d 1275, 1278 (10th Cir. 2013)

(concluding Justice Sotomayor’s concurring opinion “represents the Court’s

holding” in Freeman).

      The plea agreement between Quinn and the Government provides for a

specific term of 300 months’ imprisonment that is clearly set out in the

agreement. The agreement does not contain the calculation of an advisory

guidelines range or any statement that the proposed sentence was based on the

Guidelines. Freeman, 131 S. Ct. at 2698 (Sotomayor, J., concurring) (holding a

sentence is not based on the Guidelines unless the plea agreement itself

“expressly uses a Guidelines sentencing range to establish the term of

imprisonment”). Further, the plea agreement specifically stated the parties were

“not requesting imposition of an advisory guideline sentence.”



                                         -3-
      Having reviewed the plea agreement and the entire appellate record,

including the transcript of the sentencing hearing, it is clear the foundation for

the 300-month sentence imposed by the district court was the parties’ Rule

11(c)(1)(C) plea agreement and not the Guidelines. See id. at 2695 (Sotomayor,

J., concurring) (“[I]n applying § 3582(c)(2) a court must discern the foundation

for the term of imprisonment imposed by the sentencing judge.”). Accordingly,

the district court correctly determined that it lacked authority to grant Quinn any

relief pursuant to § 3582(c)(2). See Graham, 704 F.3d at 1278.

      The district court’s judgment is affirmed.

                                           ENTERED FOR THE COURT


                                           Michael R. Murphy
                                           Circuit Judge




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