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 th e motion and Defendant appeals. We have jurisdiction under 28 U.S.C. § 1291. We ag ree with the district court’s reasoning but vacate the order denying the motion and rema nd for entry of an order dismissing the motion for lack of jurisdiction. On September 20, 2000, a jury convicted Defendant on fi ve counts of federal drug and weapons charges. One count carried a mandatory 10-year sent ence to be served

* After examining the briefs and appellate reco rd, this panel has determined unanimously that oral argument would not ma terially 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 This order and judg ment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 w ith 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 Court2 consecutively to his sentence on the other co unts. The presentence report (PSR) prepared by the probation office calculated a provisio nal offense level of 24 for the other convictions. But because of prior felony co nvictions Defendant qualified as a career offender and received an adjusted offense leve l of 32, leading to a guideline sentencing range of 210–262 months’ imprisonment for th e 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 promulga ted 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). Defe ndant’s motion under § 3582(c)(2) is based on the amendment. It is settled, however, that an amendment to the drug-quantity ta ble at § 2D1.1(c) provides no relief to a defend ant sentenced as a career o ffender 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 1 598745, 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 po licy statement at USSG § 1B1.10. See 18 U.S.C. § 3582(c)(2). And under that policy statem ent a court may not reduce a sentence based on an amendment to the Sentencing Guidelin es if that amendment “does not have the effect of lowering the defendant’s applicable guideline range.” US SG § 1B1.10(a)(2)(B). Although Amendment 782 reduced Defendant’s pr ovisional base offense level, it did not lower his final offense level of 32, which was required by his career-offender status. See3 USSG § 4B1.1(b) (“[I]f the offense level for a career offender from the table in this subsection is greater than th e offense level otherwise app licable, the offense level from the table in this subsection shall apply.”). Th e 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 §35 82, “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 gran t the district court jurisdiction to hear a challenge to the initial propriety of a se ntence. A district court may modify a sentence “only in specified instan ces 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 se ntence 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 imprisonm ent based on a sentencing range that has subsequently been lowered by the Sentenci ng Commission.” 28 U.S.C. § 3582(c)(2).4 We VACATE the order denying Defe ndant’s motion and REMAND with instructions to DISMISS for lack of juri sdiction. Defendant’s Motion for Release Pending Appeal is DENIED.

Entered for the Court

Harris L Hartz Circuit Judge