                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  May 10, 2016
                 UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                        FOR THE TENTH CIRCUIT                      Clerk of Court
                     _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                    No. 15-5115
                                           (D.C. No. 4:07-CR-00163-CVE-2)
OSCAR IBARRA,                                         (N.D. Okla.)

      Defendant - Appellant.
                  _________________________________

                        ORDER AND JUDGMENT*
                     _________________________________

Before L U C E R O , M A T H E S O N , and B A C H A R A C H , Circuit Judges.
                     _________________________________


      This appeal involves amendment of the U.S. Sentencing Guidelines

after the defendant was convicted in federal court. At sentencing, the

district court varied downward from the defendant’s guideline range and

imposed a prison term of 168 months. Afterward, a 2014 amendment to

the U.S. Sentencing Guidelines, Amendment 782, reduced the bottom of

the defendant’s guideline range to 168 months. U.S.S.G. supp. app. C.,


*
      The Court concludes that oral argument would not materially aid
our consideration of the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th
Cir. R. 34.1(G). Thus, we have decided the appeal based on the briefs.

     Our order and judgment does not constitute binding precedent
except under the doctrines of law of the case, res judicata, and collateral
estoppel. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
amend. 782 (2015). But the district court had already imposed a 168-

month sentence. As a result, the district court declined to lower the

sentence further based on Amendment 782. The defendant appeals, but

we affirm because the district court lacked power to lower the sentence

below 168 months.

     Congress anticipated that the U.S. Sentencing Guidelines might be

amended from time to time. When guideline ranges are lowered,

18 U.S.C. § 3582(c)(2) allows the district court to reduce a previously

imposed sentence in certain circumstances. Accordingly, the defendant

invoked § 3582(c)(2), arguing in his motion that Amendment 782

supported a reduction in his sentence.

     For rulings on motions for a sentence reduction, we ordinarily

apply the abuse-of-discretion standard. United States v. Hodge, 721 F.3d

1279, 1280 (10th Cir. 2013). But the scope of the district court’s

authority under § 3582(c)(2) involves a question of law subject to de

novo review. United States v. Kurtz, __ F.3d __, 2016 WL 1212066, at *2

(10th Cir. Mar. 29, 2016) (to be published). Thus, we consider de novo

whether the district court had authority to lower the defendant’s sentence

based on Amendment 782.




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     When the defendant was initially sentenced, his guideline range

was 210 to 262 months. But the district court granted a downward

variance and sentenced the defendant to 168 months’ imprisonment.

     Amendment 782 lowered the defendant’s guideline range to 168 to

210 months. This lowered guideline range, however, does not benefit the

defendant because he had already been sentenced to 168 months’

imprisonment through the district court’s downward variance.

     Generally, the district court cannot resentence the defendant below

the amended guideline range. United States v. Kurtz, __ F.3d __, 2016

WL 1212066, at *3 (10th Cir. Mar. 29, 2016) (to be published). An

exception exists under Amendment 759 to the Sentencing Guidelines.

Under Amendment 759, the district court could dip below the amended

guideline range only if Mr. Ibarra’s original sentence had fallen below

his original guideline range based on the government’s filing of a motion

arising out of Mr. Ibarra’s substantial assistance. Id., see U.S.S.G. app.

C., Vol. III, amend. 759 (2015) ; U.S.S.G. § 1B1.10(b)(2)(B) (2015).

     But the government did not file a substantial assistance motion in

Mr. Ibarra’s case. Accordingly, the district court lacked authority to

impose a sentence below the amended guideline range. See Kurtz, 2016

WL 1212066, at *4 (holding that a district court could not sentence the



                                     3
defendant below his amended guideline range because the government

had not filed a motion based on substantial assistance).

     The defendant insists that the amended guideline range would have

dipped below 168 months if the district court had applied the downward

variance before applying Amendment 782. But the Sentencing

Guidelines’ commentary 1 explains that § 3582(c)(2) authorizes a

sentence reduction only if an amendment lowers the applicable guideline

range. U.S.S.G. § 1B1.10 n.1(A). The commentary then defines the

applicable guideline range as “the guideline range that corresponds to the

offense level and criminal history category determined pursuant to

1B1.1(a), which is determined before consideration of any departure

provision in the Guidelines Manual or any variance[].” Id. (emphasis

added). Thus, the district court had to apply the variance only after

determining the amended guideline range based on Amendment 782.

     The amended guideline range bottomed out at 168 months, which

was the sentence already imposed. The district court could not reduce the




1
      “Commentary in the Guidelines Manual that interprets or explains a
guideline is authoritative unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous reading of, that
guideline.” United States v. Boyd, 721 F.3d 1259, 1261 (10th Cir. 2013)
(quoting United States v. Nacchio, 573 F.3d 1062, 1066-67 (10th Cir.
2009)).

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sentence any further. As a result, we affirm.


                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




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