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

                                TENTH CIRCUIT                 February 17, 2017

                                                            Elisabeth A. Shumaker
                                                                Clerk of Court
    UNITED STATES OF AMERICA,

         Plaintiff-Appellee,

    v.                                              No. 16-1369
                                          (D.C. No. 1:13-CR-00046-PAB-4)
                                                     (D. Colo.)
    CARLOS RAMON-PEREZ,

         Defendant-Appellant.



                         ORDER AND JUDGMENT *


Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.


         This appeal involves Mr. Carlos Ramon-Perez’s motion to reduce

his sentence under 18 U.S.C. § 3582(c)(2). In district court, Mr. Ramon-

Perez argued that his sentence should be reduced based on a new

amendment to a sentencing guideline. The court rejected this argument,


*
      The parties do not request oral argument, and we conclude that oral
argument would not materially assist in the determination of this appeal.
Thus, we are deciding the appeal based on the briefs. See Fed. R. App. P.
34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
noting that the court had already taken the amendment into account

when sentencing Mr. Ramon-Perez. In our view, this ruling fell within

the district court’s discretion.

      On appeal, Mr. Ramon-Perez also presents a new argument,

stating that the district court improperly calculated the base-offense

level at the original sentencing. We reject this argument, for the alleged

error lies outside the scope of a proceeding authorized by 18 U.S.C.

§ 3582(c)(2).

I.    Mr. Ramon-Perez pleaded guilty and moved to reduce his
      sentence.

      Mr. Ramon-Perez pleaded guilty to a drug-conspiracy charge. The

parties anticipated that the U.S. Sentencing Commission was about to

amend the guidelines, which would lower the guideline range for Mr.

Ramon-Perez. In a plea agreement, the parties agreed that Mr. Ramon-

Perez should receive the benefit of the forthcoming amendment. The

district court accepted the agreement, sentencing Mr. Ramon-Perez as if

the amendment had already taken effect.

      After the amendment took effect, Mr. Ramon-Perez moved to

reduce his sentence based on the amendment. The court declined,

explaining that it had already considered the amendment at the original

sentencing. Mr. Ramon-Perez appealed.




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II.   Through two preliminary arguments, the government urges us
      not to reach the merits of the appeal.

      The government asks us not to reach the merits of the appeal,

presenting two preliminary arguments:

      1.    The appeal should be dismissed because Mr. Ramon-Perez
            was late in filing the notice of appeal.

      2.    Mr. Ramon-Perez waived his right to this appeal in the plea
            agreement.

We reject the first argument and decline to reach the second argument,

holding instead that this argument fails on the merits.

      The government urges dismissal of the appeal, arguing that the

notice of appeal was late. We agree that the notice of appeal was late,

but this defect may be excused if the government forfeits the issue of

timeliness. United States v. Garduno, 506 F.3d 1287, 1290-91 (10th Cir.

2007). Here the government forfeited the issue.

      The government mentioned the violation in two documents. One

was a motion to dismiss. But this motion was itself late, violating

Rule 27.3(3)(a) of the Tenth Circuit Rules. The government also alluded

to the violation in a single sentence, referring to the untimely motion to

dismiss: “But as argued in the Motion to Dismiss filed November 2,

2016, the Notice of Appeal is not timely.” Appellee’s Ans. Br. at 2. This

sentence, referring to an untimely motion that we have declined to

consider, did not adequately present the government’s argument on


                                      3
timeliness. Because the government forfeited this issue, we decline to

dismiss the appeal. 1

       The government also argues that Mr. Ramon-Perez waived his

right to this appeal in the plea agreement. We need not consider this

argument, for Mr. Ramon-Perez’s appeal fails on the merits.

III.   The district court did not abuse its discretion.

       Mr. Ramon-Perez brought his motion to reduce his sentence under

18 U.S.C. § 3582(c)(2). In applying this statute, the district court had

discretion to lower Mr. Ramon-Perez’s sentence based on the new

guideline amendment. The district court denied this motion.

       We review this denial for an abuse of discretion. United States v.

Lucero, 713 F.3d 1024, 1026 (10th Cir. 2013).

       At sentencing, the district court expressly relied on the

forthcoming amendment. Thus, after the amendment took effect, the

district court reasonably concluded that Mr. Ramon-Perez had already




1
     The government alleges that the motion to dismiss was mailed to Mr.
Ramon-Perez. But according to Mr. Ramon-Perez and the mailroom
supervisor at the prison, this motion never arrived. Mr. Ramon-Perez
argues that we should strike the motion to dismiss based on lack of service.
Because we are denying the motion on other grounds, we need not address
Mr. Ramon-Perez’s argument.


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benefited from the amendment. This ruling fell within the district

court’s discretion, 2 and we affirm.

IV.   Mr. Ramon-Perez’s new argument fails on the merits.

      On appeal, Mr. Ramon-Perez presents an argument that he did not

make in district court: During sentencing, the district court erred by

improperly calculating his base-offense level. We reject this argument.

      Mr. Ramon-Perez’s base-offense level was not affected by the

guideline amendment. Thus, this alleged error falls outside the scope of

a proceeding authorized by 18 U.S.C. § 3582(c)(2). See Dillon v. United

States, 560 U.S. 817, 831 (2010) (“Because the aspects of his sentence

that [the defendant] seeks to correct were not affected by [a guideline

amendment], they are outside the scope of the proceeding authorized by

§ 3582(c)(2), and the District Court properly declined to address

them.”).

V.    Conclusion

      In denying a sentence reduction based on the guideline

amendment, the district court did not commit an abuse of discretion.




2
      Mr. Ramon-Perez appears to misunderstand the district court’s
ruling. In his view, the court mistakenly thought that it lacked power to
reduce the sentence. But the district court did not question its power to
reduce Mr. Ramon-Perez’s sentence. Instead, the court decided not to
exercise that power because Mr. Ramon-Perez had already obtained the
benefits from the amendment.
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     We reject Mr. Ramon-Perez’s challenge to the calculation of his

base-offense level during sentencing. This alleged error falls outside the

scope of a proceeding authorized by 18 U.S.C. § 3582(c)(2).

     Affirmed.

                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




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