                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  July 28, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 08-2217
                                              (D.C. No. 2:02-CR-02262-JAP-3)
    WILLIAM MACK FIELDS,                                  (D. N.M.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, PORFILIO, and ANDERSON, Circuit Judges.



         Defendant William Mack Fields appeals the denial of his motion under

18 U.S.C. § 3582(c)(2) for a modification of his term of imprisonment. The

district court denied the motion on the merits, holding that his sentence was

ineligible for a reduction under that section. We have jurisdiction over this

appeal under 28 U.S.C. § 1291. Because the district court was without



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the appellant’s 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 ordered 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not binding precedent, except under the doctrines of law of the case, res judicata,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
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
jurisdiction to consider the motion, we remand with instructions to dismiss

Mr. Fields’s motion.

                                    Background

      A second superceding indictment charged Mr. Fields with seven counts of

crack cocaine- and firearms-related offenses. On April 29, 2003, he pled guilty to

all seven counts pursuant to a written plea agreement. That agreement included a

stipulation, expressly pursuant to Fed. R. Crim. P. 11(c)(1)(C), that a sentence of

20 years was the appropriate term of imprisonment to be imposed. The United

States Probation Office prepared a presentence report (PSR) calculating the

applicable guidelines sentencing range as 108 to 135 months. But the PSR

concluded that a mandatory minimum sentence applicable to one of the counts

increased the guidelines imprisonment sentence to 240 months. Moreover, the

PSR noted that two other counts carried additional sentences of five years each, to

run consecutively to any other term of imprisonment, for a total of 360 months.

The PSR noted the shorter 240-month stipulated sentence in the plea agreement.

Consistent with that stipulation, on October 3, 2003, the district court sentenced

Mr. Fields to a term of imprisonment of 240 months.

      On April 17, 2008, Mr. Fields filed a motion to reduce his sentence under

18 U.S.C. § 3582(c)(2), which permits a reduction “in the case of a defendant

who has been sentenced to a term of imprisonment based on a sentencing range

that has subsequently been lowered by the Sentencing Commission.” After

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appointing counsel to represent defendant and directing the government to file a

response, the district court denied the motion, stating, “Defendant Fields’s

sentence was based on a plea agreement under Fed. R. Crim. P. 11(c)(1)(C). His

sentence is thus ineligible for reduction under 18 U.S.C. § 3582(c)(2) and the

amended Sentencing Guidelines applicable to convictions for cocaine base

offenses.” R., Vol. 1 at 159 (Doc. 198). Mr. Fields appealed the district court’s

denial of his motion and this court appointed counsel to represent him in this

appeal. Defense counsel filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), accompanied by a motion to withdraw.

                                     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. Mendoza, 118 F.3d 707, 709 (10th Cir. 1997). Mr. Fields

invoked 18 U.S.C. § 3582(c)(2) as the basis for the district court’s authority to

reduce his sentence. “Unless the basis for resentencing falls within one of the

specific categories authorized by section 3582(c), the district court lacked

jurisdiction to consider [defendant’s] request.” United States v. Smartt, 129 F.3d

539, 541 (10th Cir. 1997). “The scope of a district court’s authority in a

resentencing proceeding under § 3582(c)(2) is a question of law that we review

de novo.” United States v. Rhodes, 549 F.3d 833, 837 (10th Cir. 2008),

cert. denied, 129 S. Ct. 2052 (2009).

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      Section 3582(c)(2) provides:

      (c) Modification of an imposed term of imprisonment.--The court
      may not modify a term of imprisonment once it has been imposed
      except that--
            ...

             (2) in the case of a defendant who has been sentenced to
             a term of imprisonment based on a sentencing range that
             has subsequently been lowered by the Sentencing
             Commission pursuant to 28 U.S.C. 994(o), upon motion
             of the defendant . . . the court may reduce the term of
             imprisonment, after considering the factors set forth in
             section 3553(a) to the extent that they are applicable, if
             such a reduction is consistent with applicable policy
             statements issued by the Sentencing Commission.

In support of his contention that he is eligible for a sentence reduction under this

section, Mr. Fields relies on Amendment 706 of the United States Sentencing

Guidelines, which “generally adjust[ed] downward by two levels the base offense

level assigned to quantities of crack cocaine,” United States v. Sharkey, 543 F.3d

1236, 1237 (10th Cir. 2008). Amendment 706 applies retroactively. See id.

Defendant argued in his motion that, as a result of this amendment of the

Sentencing Guidelines, his offense level would be reduced from 29 to 27, thereby

lowering his applicable sentencing range. But we conclude that the district court

had no authority to modify Mr. Fields’s sentence under § 3582(c)(2) because his

term of imprisonment was not “based on a sentencing range” as required by that

section.




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      In United States v. Trujeque, 100 F.3d 869, 869 (10th Cir. 1996), we held

that a defendant who entered into a plea agreement specifying a term of

imprisonment pursuant to Fed. R. Crim. P. 11(e)(1)(C) may not seek a reduction

in his sentence under § 3582(c)(2). The provisions of Rule 11(e)(1)(C) are now

found in Fed. R. Crim. P. 11(c)(1)(C), which provides that “the plea agreement

may specify that an attorney for the government will . . . agree that a specific

sentence . . . is the appropriate disposition of the case.” When considering this

type of plea agreement, the district court “may accept the agreement, reject it,

or defer a decision until the court has reviewed the presentence report.”

Fed. R. Crim. P. 11(c)(3)(A). But a stipulated sentence in a plea agreement

“binds the court once the court accepts the plea agreement.” Fed. R. Crim. P.

11(c)(1)(C).

      In Trujeque, after noting the applicable guidelines range, the district court

had sentenced the defendant to 84 months imprisonment, consistent with the

stipulated sentence in his plea agreement. 100 F.3d at 871. Consequently, we

reasoned that the defendant’s sentence “was based on a valid Rule 11(e)(1)(C)

[now Rule 11(c)(1)(C)] plea agreement,” rather than “on a sentencing range that

has subsequently been lowered by the Sentencing Commission.” Trujeque,

100 F.3d at 871 (quotation omitted). Since our decision in Trujeque, other

circuits have followed suit in holding that a district court does not have authority

to modify a sentence under § 3582(c)(2) when the sentence was imposed pursuant

                                          -5-
to a binding Rule 11(c)(1)(C) plea agreement. See, e.g., United States v. Sanchez,

562 F.3d 275, 280-82 (3d Cir. 2009) (collecting cases). As the Third Circuit

explained, § 3582(c)(2) obliges the court to ask what the sentence was based on:

      Where, as here, the District Court accepted a so-called “C” plea, the
      answer is simple: the sentence is based on the terms expressly
      agreed on by the defendant and the government. . . .

      . . . [The defendant’s] sentence cannot be based on the Guidelines
      because the Court lacked the discretion to consider anything outside
      of the parties’ agreement in sentencing him.

562 F.3d at 282 n.8. As in Trujeque, the district court here properly determined

that Mr. Fields’s sentence was ineligible for reduction under § 3582(c)(2).

      That determination rendered the district court without jurisdiction to

consider Mr. Fields’s motion, and the court therefore should have dismissed it for

lack of jurisdiction. See Trujeque, 100 F.3d at 871 (holding that district court

should have dismissed motion “without considering its merits”); Smartt, 129 F.3d

at 541 (“Unless the basis for resentencing falls within one of the specific

categories authorized by section 3582(c), the district court lacked jurisdiction to

consider [defendant’s] request.”).




                                         -6-
                                     Conclusion

      For the foregoing reasons we REMAND to the district court with

instructions to dismiss for lack of jurisdiction Mr. Fields’s motion for

resentencing under 18 U.S.C. § 3582(c)(2). We DENY as moot defense counsel’s

motion to withdraw.


                                                     Entered for the Court



                                                     Deanell Reece Tacha
                                                     Circuit Judge




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