                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 31, 2016
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 15-2168
                                               (D.C. No. 2:10-CR-03164-RB-1)
 FRANK MONTOYA,                                           (D.N.M.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, HOLMES, and MORITZ, Circuit Judges.


      Frank Montoya appeals from the district court’s denial of his motion to

reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). After examining his

counsel’s Anders brief 1 and fully examining the record, we conclude that Mr.

      *
             The parties have not requested oral argument, and upon examining
the briefs and appellate record, this panel has decided that oral argument would
not materially assist 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.

      This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
      1
            The Supreme Court held in Anders v. California that if defense
counsel determines that her client’s appeal is “wholly frivolous,” counsel must
                                                                      (continued...)
Montoya’s appeal is wholly frivolous and grant the request of Mr. Montoya’s

counsel to withdraw from further representation of him.

                                           I

      On June 15, 2011, Mr. Montoya entered into a plea agreement specifying a

sentence of ninety months’ imprisonment. See Fed. R. Crim. P. 11(c)(1)(C)

(providing that a plea agreement may specify that an attorney for the government

will “agree that a specific sentence . . . is the appropriate disposition of the

case”). As a condition of his plea agreement, Mr. Montoya pleaded guilty to,

inter alia, possession with the intent to distribute 500 grams and more of cocaine,

in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); possession with the

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

841(b)(1)(D); and distribution of cocaine, in violation of 21 U.S.C. §§ 841(a)(1)

and 841(b)(1)(C).

      Following entry of Mr. Montoya’s plea, the United States Probation Office

issued a Presentence Investigation Report (“PSR”), which determined that Mr.

Montoya’s base offense level was thirty-two but that he was entitled to a three-

level downward adjustment for acceptance of responsibility. 2 Based on a total

      1
              (...continued)
inform the court, request permission to withdraw, and also submit “a brief
referring to anything in the record that might arguably support the appeal.” 386
U.S. 738, 744 (1967).
      2
             The United States Probation Office used the 2010 edition of the
                                                                    (continued...)

                                          -2-
offense level of twenty-nine and a criminal history category of II, the United

States Probation Office assigned Mr. Montoya to an advisory Guidelines

sentencing range of ninety-seven to 121 months’ imprisonment. On April 2,

2012, however, the district court accepted the terms of the plea agreement and

sentenced Mr. Montoya to ninety months’ imprisonment.

      On April 6, 2015, Mr. Montoya filed a motion to have his sentence reduced

pursuant to 18 U.S.C. § 3582(c)(2). In his motion, Mr. Montoya sought to have a

retroactive amendment to U.S.S.G. § 2D1.1 applied to reduce his sentence. See

U.S.S.G., suppl. to app. C, amend. 782 (2014). If the district court had applied

the amendment, Mr. Montoya’s advisory Guidelines sentencing range would have

been reduced to seventy-eight to ninety-seven months’ imprisonment. However,

the United States Probation Office issued an advisory memorandum that

recommended against applying the amendment to Mr. Montoya’s sentence

because the actual sentence that the district court imposed was based on Mr.

Montoya’s plea agreement, not his offense level.

      On September 21, 2015, the district court issued an order denying Mr.

Montoya’s § 3582(c)(2) motion. Mr. Montoya, through his counsel, filed a timely

notice of appeal. Pursuant to the framework established in Anders, Mr.


      2
             (...continued)
United States Sentencing Guidelines (“U.S.S.G.”) Manual in preparing the PSR.
The parties do not contest the applicability of that edition on appeal; therefore, as
needed, we rely on the 2010 edition in conducting our analysis.

                                         -3-
Montoya’s counsel then filed a brief setting forth one potentially nonfrivolous

issue for appeal and requesting permission to withdraw from further

representation of Mr. Montoya. The one issue was the following: whether Mr.

Montoya’s motion for reduction in sentence was properly denied. Having

independently reviewed the record, we discern no other issues worthy of

consideration. Therefore, we turn to the sentence-reduction matter.

                                          II

      “We review for an abuse of discretion a district court’s decision to deny a

reduction of sentence under 18 U.S.C. § 3582(c)(2).” United States v. Osborn,

679 F.3d 1193, 1195 (10th Cir. 2012). In doing so, we “review de novo the

district court’s interpretation of a statute or the sentencing guidelines,” as well as

other questions of law that form the basis of the district court’s decision. United

States v. Hodge, 721 F.3d 1279, 1280 (10th Cir. 2013); accord United States v.

Rhodes, 549 F.3d 833, 837 (10th Cir. 2008). One such question of law is “[t]he

scope of a district court’s authority in a resentencing proceeding under

§ 3582(c)(2).” Rhodes, 549 F.3d at 837.

      It is settled law that “[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)

(quoting United States v. Mendoza, 118 F.3d 707, 709 (10th Cir. 1997)). Pursuant

to 18 U.S.C. § 3582(c)(2), “[t]he district court may modify a defendant’s term of

                                          -4-
imprisonment when he has been sentenced based on a range subsequently lowered

by the Sentencing Commission and the reduction is otherwise consistent with

policy statements in the guidelines.” Hodge, 721 F.3d at 1280. Under limited

circumstances, “defendants sentenced under a Rule 11(c)(1)(C) agreement are

entitled to retroactive reductions in the Guidelines [under § 3582(c)(2)].” United

States v. Graham, 704 F.3d 1275, 1277 (10th Cir. 2013).

      In Freeman v. United States, ---U.S.----, 131 S. Ct. 2685 (2011) (plurality

opinion), Justice Sotomayor wrote a concurring opinion that states the Court’s

controlling holding. 3 As relevant here, she explained that “when a [Rule

11(c)(1)(C)] agreement expressly uses a Guidelines sentencing range to establish

the term of imprisonment, and that range is subsequently lowered by the

Commission, the defendant is eligible for sentence reduction under § 3582(c)(2).”

Id. at 2698 (emphasis added). In other words, the Guidelines sentencing range

must be “evident from the agreement itself” for a sentence specified in a Rule



      3
              In Graham, we explained that, along with Justice Sotomayor’s
concurring opinion, the Freeman Court issued a plurality opinion and a dissenting
opinion that each garnered four votes. 704 F.3d at 1278. We recognized that
“[w]hen a fragmented Court decides a case and no single rationale explaining the
result enjoys the assent of five Justices, the holding of the Court may be viewed
as that position taken by those [m]embers who concurred in the judgment on the
narrowest grounds.” Id. (alterations in original) (quoting Marks v. United States,
430 U.S. 188, 193 (1977)). We further explained that “[e]very federal appellate
court to consider the matter has reached the same conclusion, and we agree:
Justice Sotomayor’s concurrence is the narrowest grounds of decision and
represents the Court’s holding.” Id. (collecting cases).

                                        -5-
11(c)(1)(C) agreement to be eligible for a reduction under § 3582(c)(2). Id. at

2697.

        The Rule 11(c)(1)(C) agreement in this case does not satisfy the Freeman

standard. The agreement mentions the Guidelines three times. First, the

agreement provides,

              The United States hereby expressly reserves the right to make
              known to the United States Probation Office and to the Court, for
              inclusion in the presentence report prepared pursuant to Rule 32,
              Fed. R. Crim. P., any information that the United States believes
              may be helpful to the Court, including but not limited to
              information about any relevant conduct under U.S.S.G. § 1B1.3.

R., Vol. I, at 17 (Plea Agreement, dated Jun. 15, 2011). Second, the agreement

provides, “The defendant and the United States agree, pursuant to Fed. R. Crim.

P. 11(c)(1)(C) and U.S.S.G. § 6B1.2(c), 4 that the appropriate sentence in this case

is imprisonment for a period of ninety (90) months.” Id. at 19. Third, the

agreement includes a statement by Mr. Montoya and his attorney, averring that

Mr. Montoya has been “advised . . . of [his] rights, of possible defenses, of the

sentencing factors set forth in 18 U.S.C. § 3553(a), of the relevant sentencing

guidelines provisions, and of the consequences of entering into this agreement.”

Id. at 22.

        Even though the Guidelines sentencing range was ninety-seven to 121

        4
             Section § 6B1.2(c) provides guidance to sentencing courts on the
factors they should consider in deciding whether to accept a Rule 11(c)(1)(C)
agreement. It does not specify any advisory Guidelines ranges, much less ranges
that would be applicable in particular cases; its function is procedural.

                                         -6-
months’ imprisonment, the parties agreed to, and the district court imposed, a

ninety-month sentence. The agreement does not mention a Guidelines sentencing

range, much less “call for the defendant to be sentenced within a particular

Guidelines sentencing range.” Freeman, 131 S. Ct. at 2697. Furthermore, the

agreement does not “make clear that the basis for [Mr. Montoya’s ninety-month

term] is a Guidelines sentencing range applicable to the offense to which the

defendant pleaded guilty.” Id. Put another way, the plea agreement does not base

the ninety-month term on the Guidelines sentencing range of ninety-seven to 121

months’ imprisonment. Therefore, because Mr. Montoya’s Rule 11(c)(1)(C) plea

agreement was not based on a sentencing range that has since been lowered, the

district court lacked jurisdiction to consider Mr. Montoya’s § 3582(c)(2) motion.

See Graham, 704 F.3d at 1277 (noting that, without statutory authority, federal

courts “lack jurisdiction to modify a term of imprisonment once it has been

imposed”).

                                         III

      Exercising our jurisdiction under 28 U.S.C. § 1291, we GRANT the request

of Mr. Montoya’s counsel to withdraw from further representation of Mr.

Montoya. Having fully examined the record, we agree with his counsel that Mr.

Montoya’s appeal is wholly frivolous. More specifically, we conclude that the

district court lacked jurisdiction over his motion. While we see no error in the

district court’s decision not to grant Mr. Montoya relief, dismissal, rather than

                                         -7-
denial, is the appropriate disposition of Mr. Montoya’s § 3582 motion. 5 We

REMAND the case to the district court, directing the court to VACATE its order

denying Mr. Montoya’s motion and to enter in its stead an order DISMISSING

the motion for lack of jurisdiction.



                                        ENTERED FOR THE COURT


                                        Jerome A. Holmes
                                        Circuit Judge




      5
              See Graham, 704 F.3d at 1279 (“While we find no fault with the
district court’s analysis, dismissal rather than denial is the appropriate disposition
of Graham’s § 3582 motion.”).

                                         -8-
