UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JOHN THOMAS FISHER, 

 Defendant - Appellant. 

No. 15-5100 

(D.C. No. 4:00-CR-00033-TCK-1) 

(N.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges. 

 __________________________________ 

Defendant John Fisher moved for a reduced sentence under 18 U.S.C. 

§ 3582(c)(2). The district court denied the motion and Defendant appeals. We have 

jurisdiction under 28 U.S.C. § 1291. We agree with the district court’s reasoning but 

vacate the order denying the motion and remand for entry of an order dismissing the 

motion for lack of jurisdiction. 

On September 20, 2000, a jury convicted Defendant on five counts of federal drug 

and weapons charges. One count carried a mandatory 10-year sentence to be served 

 

* 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 This order and judgment is not binding precedent, except under 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 28, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

consecutively to his sentence on the other counts. The presentence report (PSR) prepared 

by the probation office calculated a provisional offense level of 24 for the other 

convictions. But because of prior felony convictions Defendant qualified as a career 

offender and received an adjusted offense level of 32, leading to a guideline sentencing 

range of 210–262 months’ imprisonment for the four convictions. The district court 

adopted the PSR and sentenced Defendant to 330 months’ imprisonment, the bottom of 

the combined guideline range. 

The Sentencing Commission later promulgated Amendment 782, which applies 

retroactively and reduces by two levels many of the base offense levels for drug offenses 

assigned by the drug-quantity table at USSG § 2D1.1(c). Defendant’s motion under 

§ 3582(c)(2) is based on the amendment. 

It is settled, however, that an amendment to the drug-quantity table at § 2D1.1(c) 

provides no relief to a defendant sentenced as a career offender under USSG § 4B1.1(b). 

See, e.g., United States v. Sharkey, 543 F.3d 1236, 1239 (10th Cir. 2008) (Amendment 

706); United States v. Bowman, No. 15-5086, 2016 WL 1598745, at *1 (10th Cir. Apr. 

21, 2016) (Amendment 782). A court may reduce a sentence under § 3582(c) only if that 

reduction is consistent with the policy statement at USSG § 1B1.10. See 18 U.S.C. 

§ 3582(c)(2). And under that policy statement a court may not reduce a sentence based 

on an amendment to the Sentencing Guidelines if that amendment “does not have the 

effect of lowering the defendant’s applicable guideline range.” USSG § 1B1.10(a)(2)(B). 

Although Amendment 782 reduced Defendant’s provisional base offense level, it did not 

lower his final offense level of 32, which was required by his career-offender status. See 
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USSG § 4B1.1(b) (“[I]f the offense level for a career offender from the table in this 

subsection is greater than the offense level otherwise applicable, the offense level from 

the table in this subsection shall apply.”). The district court therefore lacked authority to 

reduce Defendant’s term of imprisonment. It properly ruled that Defendant was not 

entitled to relief, but it should have dismissed the motion for lack of jurisdiction instead 

of denying the motion. See United States v. Graham, 704 F.3d 1275, 1279 (10th Cir. 

2013) (if a sentence reduction is not authorized by §3582, “dismissal rather than denial is 

the appropriate disposition.”); United States v. White, 765 F.3d 1240, 1242 (10th Cir. 

2014) (“While . . . the district court did not err in holding that [the defendant] was 

ineligible for a sentence reduction under § 3582(c)(2), his motion should have been 

dismissed, not on the merits, but on jurisdictional grounds.”). 

Defendant also argues that the court sentenced him incorrectly by wrongly 

classifying him as a career offender. But § 3582(c)(2) does not grant the district court 

jurisdiction to hear a challenge to the initial propriety of a sentence. A district court may 

modify a sentence “only in specified instances where Congress has expressly granted the 

court jurisdiction to do so.” United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 

1996). “An argument that a sentence was incorrectly imposed should be raised on direct 

appeal or in a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 

2255,” not via § 3582(c)(2). United States v. Torres-Aquino, 334 F.3d 939, 941 (10th 

Cir. 2003). Section 3582(c)(2) grants jurisdiction only “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.” 28 U.S.C. § 3582(c)(2). 
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We VACATE the order denying Defendant’s motion and REMAND with 

instructions to DISMISS for lack of jurisdiction. Defendant’s Motion for Release 

Pending Appeal is DENIED. 

Entered for the Court 

Harris L Hartz 

Circuit Judge