*

This order and judgment is not binding precedent except under the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

August 6, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 08-3085

v. (D. Kansas)

ALEX OROZCO,

Defendant - Appellant.

(D.C. No. 03-CR-40126-SAC)

ORDER AND JUDGMENT*

Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.

After examining the briefs and the appellate record, this court 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). 

Accordingly, the case is ordered submitted without oral argument.

Proceeding pro se, Alex Orozco appeals the district court’s dismissal of the

Motion to Modify Sentence he brought pursuant to 18 U.S.C. § 3582(c)(2). On

May 18, 2005, Orozco pleaded guilty to one count of distributing
-2-

methamphetamine, in violation of 18 U.S.C. § 841(a)(1). United States v.

Orozco, 219 F. App’x 777, 777 (10th Cir. 2007). The Government’s motion to

enforce an appeal waiver contained in Orozco’s plea agreement was granted by

this court and his direct appeal was dismissed. Id. at 778. 

Orozco then filed the § 3582(c)(2) motion that is the subject of this appeal.

In his motion, Orozco argued his sentence should be modified based on changes

made to § 4A1.2 of the United States Sentencing Guidelines. See United States v.

Torres-Aquino, 334 F.3d 939, 940 (10th Cir. 2003) (“Under 18 U.S.C.

§ 3582(c)(2), a court may reduce a previously imposed sentence if the Sentencing

Commission has lowered the applicable sentencing range and ‘such a reduction is

consistent with applicable policy statements issued by the Sentencing

Commission.’”). The Government sought dismissal of Orozco’s motion, basing

its argument on the following waiver provision in the plea agreement:

Defendant knowingly and voluntarily waives any right to appeal or

collaterally attack any matter in connection with this prosecution,

conviction and sentence. The defendant is aware that Title 18,

U.S.C. § 3742 affords a defendant the right to appeal the conviction

and sentence imposed. By entering into this agreement, the

defendant knowingly waives any right to appeal a sentence imposed

which is within the guideline range determined appropriate by the

court. The defendant also waives any right to challenge a sentence

or otherwise attempt to modify or change his sentence or manner in

which it was determined in any collateral attack, including, but not

limited to, . . . a motion brought under Title 18 U.S.C. § 3582(c)(2).

The district court granted the Government’s motion and dismissed Orozco’s

§ 3582(c)(2) motion. The court concluded the issues Orozco sought to raise fell
-3-

within the scope of the waiver in his plea agreement which he entered into

knowingly and voluntarily. See United States v. Hahn, 359 F.3d 1315, 1327 (10th

Cir. 2004) (en banc). In the alternative, the district court concluded Orozco’s

claims failed on the merits. 

Orozco filed the instant appeal, challenging the district court’s dismissal of

his § 3582(c)(2) motion. We have reviewed the record, the appellate briefs, and

the applicable law and conclude the dismissal of Orozco’s § 3582(c)(2) motion

was clearly correct. Accordingly, the district court’s order dismissing Orozco’s

motion is affirmed for substantially the reasons stated in the district court’s order

dated February 21, 2008. 

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge