                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 15 2004
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                       No. 03-5091
                                                          (N.D. Okla.)
 DOMINIC EVANS,                                      (D.Ct. No. 90-CR-31-E)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously 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          This order and judgment is not binding precedent except under the doctrines of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. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       Dominic Evans, a pro se litigant and federal inmate, appeals the district

court’s dismissal of his motion, filed pursuant to 18 U.S.C. § 3582(c)(2), seeking

a reduction of his 295-month sentence. We exercise jurisdiction under 28 U.S.C.

§ 1291 and affirm. 2



       A jury found Mr. Evans guilty of conspiracy to distribute and possess with

intent to distribute “crack” cocaine in violation of 21 U.S.C. §§ 841 and 846.

See United States v. Evans, 970 F.2d 663, 666 (10th Cir. 1992) (Evans I). The

district court sentenced him to 295 months imprisonment. Id. at 666. This court

affirmed Mr. Evans’ conviction on direct appeal. Id. at 679. Thereafter, Mr.



       2
          On September 9, 2003, this court issued an Order partially remanding the matter
to the district court for a determination of whether Mr. Evans’ failure to comply with the
filing requirements of Federal Rule of Appellate Procedure 4(b)(1)(A)(i) was based on
excusable neglect, thereby affording us jurisdiction to decide his untimely appeal. In so
doing, we directed the clerk of the district court to supplement the appellate record with
any future orders on the remand issue.

        On April 26, 2004, we issued another Order directing the district court to respond
to our September 9, 2003 Order and determine whether Mr. Evans’ late filing was based
on excusable neglect. To date, neither the district court nor the clerk thereof has
transmitted any further pleadings or orders to this court. However, Mr. Evans has
provided us with a copy of a February 25, 2004 Order, which extends his filing time for
appeal due to “excusable neglect.” Given this order is stamp-filed by the Clerk of the
United States District Court for the Northern District of Oklahoma and signed by the
district court judge presiding over the § 3582 motion, it appears valid and will be
considered for the purpose of providing this panel jurisdiction to consider Mr. Evans’
appeal.


                                            -2-
Evans filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence

on various grounds. See United States v. Evans, 51 F.3d 287, 1995 WL 139420 at

*1 (10th Cir. March 31, 1995) (unpublished op.) (Evans II). The district court

denied the motion, which this court affirmed. Id. at **1-2.



      Mr. Evans then filed the instant § 3582(c)(2) motion to modify his 295-

month sentence. He argued Sentencing Commission Amendment 645 reduced the

sentencing range applicable to his term of imprisonment by amending the

commentary to United States Sentencing Guideline §5G1.3 and clarifying its

downward departure provision. 3



      The district court subsequently denied Mr. Evans’ § 3582(c)(2) motion. In

explaining its reasons for denying the motion, the district court noted U.S.S.G.

§1B1.10(c), which contains the applicable policy statement, explicitly states



      3
          Amendment 645 reads as follows:

      Downward Departure Provision. – In the case of a discharged term of
      imprisonment, a downward departure is not prohibited if subsection (b)
      would have applied to that term of imprisonment had the term been
      undischarged. Any such departure should be fashioned to achieve a
      reasonable punishment for the instant offense.

U.S.S.G., Appendix C, Volume II, at 282-83 (effective November 1, 2002).


                                            -3-
which amendments are covered, and does not include Amendment 645, thereby

precluding relief. See U.S.S.G. §1B1.10 (c) and cmt. n.2. Nevertheless, the

district court determined it could give retroactive effect to an unlisted

amendment, if it was clarifying rather than substantive. In determining whether

the amendment was substantive or clarifying, the district court noted the

amendment added a new topic on downward departure, not previously discussed

in the commentary, which would not have applied to the 1990 version of §5G1.3

in effect at the time of Mr. Evans’ resentencing. Accordingly, the district court

denied Mr. Evans’ § 3582 motion for reduction of his sentence.



      Mr. Evans appeals the district court’s decision, insisting Amendment 645

clarifies the version of §5G1.3 in place at the time of his sentencing. In so doing,

he claims the government misled the district court into relying on the 1991

version of §5G1.3, rather than the 1989 version in effect at the time of his 1990

sentencing.



      We review de novo the district court’s interpretation of a statute or the

sentencing guidelines. United States v. Smartt, 129 F.3d 539, 540 (10th Cir.

1997) (quotation marks and citation omitted). When a “motion for sentence

reduction is not a direct appeal or a collateral attack under 28 U.S.C. § 2255, the


                                          -4-
viability of [the] motion depends entirely on 18 U.S.C. § 3582(c).” Id. (quotation

marks, citation and alterations omitted). Section 3582(c) allows the court to

modify a sentence in only three limited circumstances, including: 1) on motion of

the Director of the Bureau of Prisons if special circumstances exist; 2) if

otherwise expressly permitted by statute or Federal Rule of Criminal Procedure

35; or 3) if the sentencing range is subsequently lowered by the Sentencing

Commission. Id. at 540-41. As previously noted, Mr. Evans’ motion is premised

on the last circumstance–a reduction of the sentencing range applicable to him.



      Having reviewed the record and briefs on appeal, we conclude the district

court did not err in denying Mr. Evans’ motion to modify his sentence under

§ 3582(c)(2). As the district court aptly explained, Amendment 645 is not listed

in §1B1.10(c), and therefore a reduction of Mr. Evans’ sentence under

§ 3582(c)(2) is “not authorized.” See United States v. Torres-Aquino, 334 F.3d

939, 941 (10th Cir. 2003).



      We also reject Mr. Evans’ contention Amendment 645 should be given

retroactive application because it is a “clarifying” amendment rather than a

“substantive” amendment. “The question whether an amendment to the guidelines

is clarifying or substantive goes to whether a defendant was correctly sentenced


                                         -5-
under the guidelines in the first place, not to whether a correct sentence has

subsequently been reduced by an amendment to the guidelines and can be

modified in a proceeding under § 3582(c)(2).” Torres-Aquino, 334 F.3d at 941.

As a result, the clarifying question raised by Mr. Evans may not be reached in

addressing his § 3582 motion, making the question of whether the district court

applied the correct version of §5G1.3 immaterial to our decision. Similarly, the

fact the district court reached a decision on the substantive nature of the

amendment in denying the motion does not change the result. Id.



      Accordingly, we AFFIRM the district court’s decision denying a sentence

reduction under 18 U.S.C. § 3582(c)(2).



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




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