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

                             FOR THE TENTH CIRCUIT                          May 23, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 16-2003
                                                 (D.C. No. 2:92-CR-00486-KG-1)
GABRIEL RODRIGUEZ-AGUIRRE,                                   (D.N.M.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

      Gabriel Rodriguez-Aguirre appeals the district court’s denial of his motion for

a sentence reduction under 18 U.S.C. § 3582(c)(2) based on a subsequent amendment

to the United States Sentencing Guidelines. Exercising jurisdiction under 28 U.S.C.

§ 1291, we vacate the district court’s order and remand with instructions to dismiss

the motion.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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

      In 1994, a jury convicted Rodriguez-Aguirre on multiple counts of drug

trafficking and money laundering. His presentence report (“PSR”) recommended a

base offense level of 38 because the quantity of marijuana-equivalent attributable to

Rodriguez-Aguirre was approximately 2.2 million kilograms—far greater than the

30,000 kilogram threshold for that base offense level. Based in part on his offense

level, the PSR recommended a Guidelines range of 360 months to life imprisonment.

The district court sentenced him to 360 months’ imprisonment.

      In 2014, Amendment 782 to the Guidelines lowered certain offense levels

under U.S.S.G. § 2D1.1(c). U.S.S.G. Manual, Supp. to App. C, amend. 782.

However, the Amendment retained an offense level of 38 for offenses involving more

than 90,000 kilograms of marijuana. § 2D1.1(c) (2015). In October 2015,

Rodriguez-Aguirre sent a letter to the clerk in the District of New Mexico asking the

court to appoint counsel to file a motion for a sentence reduction under § 3582(c)(2)

in light of Amendment 782. The letter appeared in the district court’s docket as a

motion for a sentence reduction. In response, the district court appointed counsel,

but before counsel appeared or filed anything on Rodriguez-Aguirre’s behalf, the

court sua sponte entered an order denying a sentence reduction. Rodriguez-Aguirre

appeals.

                                          II

      We review “de novo the scope of a district court’s authority in a proceeding

under § 3582(c)(2).” United States v. Williams, 575 F.3d 1075, 1076 (10th Cir.

                                          2
2009). A district court does not have jurisdiction over a § 3582(c)(2) motion if “a

change in the guidelines would not lower the offense level or criminal-history

category of the defendant.” United States v. White, 765 F.3d 1240, 1246, 1250 (10th

Cir. 2014) (quotation omitted).

       On appeal, Rodriguez-Aguirre concedes that he was not eligible for a sentence

reduction. We agree. Because his offense involved more than 90,000 kilograms of

marijuana-equivalent, Amendment 782 did not lower his offense level. Accordingly,

the district court properly held that Rodriguez-Aguirre was not entitled to § 3582

relief. However, because his offense level was unchanged, the district court did not

have jurisdiction and should have dismissed, rather than denied, the motion. See id.

at 1250.1

                                             III

       The district court’s order is VACATED. We REMAND with instructions to

dismiss the motion for lack of jurisdiction. Rodriguez-Aguirre’s motion to proceed

in forma pauperis is GRANTED. The government’s motion to supplement the

record on appeal is DENIED.




       1
         Rodriguez-Aguirre also argues that the district court erred in construing his letter
requesting that the court appoint counsel to file a § 3582(c)(2) motion as itself a motion
for a sentence reduction. We do not consider whether the district court permissibly
construed the letter as a motion, because Rodriguez-Aguirre was not eligible for relief
under § 3582, as discussed supra, and any procedural error was harmless. See Fed. R.
Crim. P. 52.
                                              3
Entered for the Court

Carlos F. Lucero
Circuit Judge




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