UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. IGNACIO SALCIDO, JR., Defendant - Appellant. No. 20-2108 (D.C. No. 2:16-CR-04290-KG-1) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , BRISCOE , and CARSON , Circuit Judges.

________________ _________________ Ignacio Salcido, Jr., proceeding pro se 1 , appeals the district court’s denial of his motion to reduce his sentence under 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. Exercising

* After examining the briefs and appella te record, this pa nel 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 Because Mr. Salcido proceeds pro se, we construe his arguments liberally, but we “cannot take on the responsibility of serving as [his] attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005). FILED United States Court of Appeals Tenth Circuit 

### June 4, 2021 Christopher M. Wolpert Clerk of Court2 jurisdiction under 28 U.S.C. § 1291, we agr ee with the district court that Mr. Salcido was not entitled to relief, but we remand with instructions to th e district court to vacate the order denying th e motion and to dismiss for lack of jurisdiction.
I. BACKGROUND A federal grand jury in the District of New Mexico indicted Mr. Salcido for transporting a minor in interstate and forei gn commerce with the intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a). Mr. Salcido pled guilty. The district court sentenced him to 120 months in prison. He is currently serving his sentence at the Federal Medica l Center in Fort Worth, Texas (“FMC Fort Worth”). When Mr. Salcido attempted to appeal, this court enforced the a ppeal waiver in his plea agreement and dismissed the appeal. See United States v. Salcido , 783 F. App’x 800, 804 (10th Cir. 2019). Mr. Salcido filed an emergency motion to reduce sentence and for compassionate release under 18 U.S.C. § 3582(c)(1)(A). He argued that extraordinary and compelling reasons justif ied his early release, including (1) the presence of COVID-19 at FMC Fort Worth a nd (2) his elderly mo ther’s health care needs. He did not allege he had exhausted his admi nistrative remedies. The Government raised Mr. Salcido’ s failure to exhaust as a re ason to deny the motion. It further argued Mr. Salcido had not presen ted sufficient reasons for compassionate release and that he still pos ed a significant danger to commu nity safety. The district court agreed with the Government on both gr ounds. It therefore denied the motion as3 procedurally defective and for failure to allege extraordinary and compelling reasons justifying release.
II. DISCUSSION Mr. Salcido presents no argument challenging the district court’s determination that he did not exhaust his administrative remedies. His failure to exhaust was fatal to his moti on. The district court “m ay not modify a term of imprisonment once it has been imposed” unless the Director of the Bureau of Prisons moves for sentence modification on a defendant ’s behalf (which did not occur here) or unless the defendant so moves and “has fully exhausted all administrative rights to appeal a failure of the Bur eau of Prisons to bring” such a motion. 18 U.S.C. § 3582(c)(1)(a). The district court ther efore correctly concluded Mr. Salcido’s motion was procedurally defective. This procedural defect meant the district court lacked the authority to review Mr. Salcido’s request, so dismissal rath er than denial of the motion was the appropriate disposition. See United States v. White , 765 F.3d 1240, 1250 (10th Cir. 2014).
III. CONCLUSION We vacate the order denying Mr. Sa lcido’s motion and remand with instructions to dismiss it fo r lack of jurisdiction. We deny Mr. Salcido’s motion for appointment of counsel. We also deny his motion to proceed in forma pauperis because he has not advanced “a reasoned, nonfrivolous argument on the law and facts4 in support of the issues raised on appeal.” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991).

Entered for the Court
Scott M. Matheson, Jr. Circuit Judge