UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

v.

CLAYTON ALBERS, 

 Defendant - Appellant.

No. 22-3215

(D.C. No. 6:93-CR-10020-EFM-1)

(D. Kan.)

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before EID, CARSON, and ROSSMAN, Circuit Judges.

_________________________________

Defendant-Appellant Clayton Albers appeals pro se from the district court’s 

denial of his motion for sentence reduction under 18 U.S.C. § 3582(c)(2). Exercising 

jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

Mr. Albers was convicted in 1994 in the District of Kansas for multiple drug

offenses, including conspiracy to manufacture methamphetamine with intent to 

* 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

February 9, 2024

Christopher M. Wolpert

Clerk of Court

Appellate Case: 22-3215 Document: 010110997734 Date Filed: 02/09/2024 Page: 1
2

distribute under 21 U.S.C. §§ 841(a)(1) & 846. He was sentenced to 360 months’ 

imprisonment (the Kansas prison term).

1

 While serving that sentence, Mr. Albers 

was convicted in the Western District of Oklahoma for additional crimes he 

committed while in prison, including conspiring to impede or injure an officer and 

mailing threatening communications. For those crimes, he was sentenced in 2008 to 

an additional 168 months’ imprisonment (the Oklahoma prison term), imposed to run 

consecutively to the then-uncompleted Kansas prison term.

On June 29, 2020, Mr. Albers completed serving the Kansas prison term. He 

remained imprisoned on the Oklahoma prison term. On July 5, 2022, he filed a 

motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) in the District of 

Kansas, seeking reduction of his prison term under Amendment 782 to the sentencing 

guidelines.

2

 The district court denied his motion. It concluded § 3582(c)(2) did not 

give it authority to reduce the Kansas prison term because Mr. Albers had already 

fully served that prison term, and it rejected his argument that the Kansas and 

Oklahoma prison terms should be treated as a single aggregated term. This appeal 

followed.

1 Mr. Albers was first given a life sentence, which this court vacated on appeal. 

See United States v. Albers, 93 F.3d 1469, 1472, 1489 (10th Cir. 1996). On remand, 

he was resentenced to 360 months in prison, and this court affirmed. See United 

States v. Albers, No. 97-3228, 1998 WL 223344, at *1 (10th Cir. May 6, 1998)

(unpublished). 2 Amendment 782 reduced the guidelines offense levels for many drug 

offenses and was made available retroactively. See United States v. Green, 886 F.3d 

1300, 1302, 1303 (10th Cir. 2018). For purposes of this appeal, we assume

Mr. Albers’s Kansas sentence would have been eligible for reduction under 

Amendment 782 while he was serving it.

Appellate Case: 22-3215 Document: 010110997734 Date Filed: 02/09/2024 Page: 2
3

II.

A.

“In general, once a court has imposed a sentence, the court has no authority to 

modify that sentence. However, . . . Congress has provided the court with the 

authority to modify previously imposed sentences in three, very limited 

circumstances.” United States v. Mannie, 971 F.3d 1145, 1148 (10th Cir. 2020). 

Both the authority to modify a sentence and the limits of that authority are set by 

statute, specifically 18 U.S.C. § 3582(c). See id. 

One of these statutory exceptions allows a defendant to seek reduction of a 

prison term when he was sentenced “based on a sentencing range that has 

subsequently been lowered by the Sentencing Commission.” § 3582(c)(2). A motion 

under § 3582(c)(2) presents a two-step inquiry. United States v. Green, 886 F.3d 

1300, 1306 (10th Cir. 2018). “First, a court must determine whether a defendant is 

eligible for a sentence reduction. Second, the court must consider whether a sentence 

reduction is warranted in accordance with the 18 U.S.C. § 3553(a) factors.” Id.

Here, the district court concluded § 3582(c)(2) did not authorize it to reduce 

Mr. Albers’s already-completed Kansas prison term. We review that determination 

de novo. See United States v. Rhodes, 549 F.3d 833, 837 (10th Cir. 2008). 

B.

We agree with the district court—and several other circuits that have 

addressed this issue—that § 3582(c)(2) does not give a district court authority to 

reduce a prison term after the defendant has fully served it. 

Appellate Case: 22-3215 Document: 010110997734 Date Filed: 02/09/2024 Page: 3
4

Under the express language of § 3582(c)(2), sentence reduction is available 

only if “consistent with applicable policy statements issued by the Sentencing 

Commission.” § 3582(c)(2). Therefore, “the Sentencing Commission’s policy 

statements in [sentencing guideline (USSG)] § 1B1.10 are binding on district courts

and limit their authority to grant motions for reduction of sentences.” United States 

v. McGee, 615 F.3d 1287, 1292 (10th Cir. 2010) (emphasis added) (citing Dillon v. 

United States, 560 U.S. 817 (2010)). One of these binding limitations is that “[i]n no 

event may the reduced term of imprisonment be less than the term of imprisonment 

the defendant has already served.” USSG § 1B1.10(b)(2)(C). Here, Mr. Albers had 

already completed his Kansas prison term before filing his § 3582(c)(2) motion, so 

any reduction would necessarily have shortened that prison term to less than the time 

he had already served. Because it would be inconsistent with § 1B1.10(b)(2)(C) to 

shorten a prison term after a defendant has fully served it, § 3582(c)(2) does not grant 

a district court authority to do so. 

While we have not previously addressed this issue, other circuits have reached 

the same conclusion. See United States v. Llewlyn, 879 F.3d 1291, 1295 (11th Cir. 

2018) (holding district court was “without authority” under § 3582(c)(2) and 

Amendment 782 to reduce a prison term the defendant had already completely 

served); United States v. Vaughn, 806 F.3d 640, 643 (1st Cir. 2015) (holding 

defendant “is ineligible for relief under Amendment 782 because he has already 

served the entirety of his otherwise eligible sentence”); United States v. Chapple, 847 

F.3d 227, 230 (5th Cir. 2017) (“Because Chapple had already served the sentence that 

Appellate Case: 22-3215 Document: 010110997734 Date Filed: 02/09/2024 Page: 4
5

was eligible for reduction under Amendment 782, his § 3582(c)(2) motion was not 

consistent with § 1B1.10.” (internal quotation marks omitted)); United States v. 

Gamble, 572 F.3d 472, 474–75 (8th Cir. 2009) (holding defendant ineligible for 

sentence reduction under § 3582(c)(2) because he was “no longer serving” the prison 

term for any offense eligible for reduction). Mr. Albers cites no case that has 

addressed § 1B1.10(b)(2)(C) and held otherwise, and we are not aware of any. We 

reach the same result as the decisions of other circuits. 

C.

Mr. Albers acknowledges he had completed his Kansas prison term before 

filing his § 3582(c)(2) motion but argues he should still be eligible for relief because 

he remains in custody completing the Oklahoma prison term. But the Oklahoma 

prison term was imposed years later, by a separate court, based on separate conduct, 

and for offenses that are not eligible for reduction under Amendment 782.

3

 

Mr. Albers identifies no authority that has interpreted § 3582(c)(2) to allow one 

district court to modify a sentence imposed by another. He argues that reduction of 

the Kansas prison term would “result in an earlier end date to the Kansas sentence 

and an earlier start date to the Oklahoma sentence,” so that his release would be 

hastened, even though “[t]he length of the Oklahoma sentence would remain 

3 Mr. Albers has twice sought and been denied early release from his 

uncompleted Oklahoma sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). See 

Order, United States v. Albers, No. CR-07-154-D (W.D. Okla. July 21, 2022)

(denying motion for compassionate release) and Order, United States v. Albers, No. 

CR-07-154-D (W.D. Okla. Jan. 14, 2021) (same). Those decisions are not part of this 

appeal. 

Appellate Case: 22-3215 Document: 010110997734 Date Filed: 02/09/2024 Page: 5
6

unaffected.” See Aplt. Br. at 3-F. That may be a true statement of the administrative 

consequences a reduction in the Kansas prison term would have if it were authorized,

but it does not give the district court the authority to grant such a reduction, since it is 

foreclosed by § 1B1.10(b)(2)(C). 

Before the district court, Mr. Albers (then represented by counsel) argued his 

Kansas and Oklahoma prison terms should be treated as a single aggregated sentence, 

citing 18 U.S.C. § 3584(c).

4

 That statute provides that “[m]ultiple terms of 

imprisonment ordered to run consecutively or concurrently shall be treated for 

administrative purposes as a single, aggregate term of imprisonment” (emphasis 

added). We agree with the district court that Mr. Albers’s motion under § 3582(c)(2)

was not an “administrative purpose.” See generally United States v. Gonzales, 520 

U.S. 1, 8 (1997) (stating § 3584(c) “instructs the Bureau of Prisons [BOP] to treat 

multiple terms of imprisonment . . . for administrative purposes as a single, aggregate 

term” (emphasis added; internal quotation marks omitted)); United States v. Wilson, 

503 U.S. 329, 335 (1992) (stating the BOP “has the responsibility for administering

the sentence” after it is imposed by a court (emphasis added)). 

Again, while we have not previously addressed this argument, other circuits

have uniformly rejected similar requests to treat separately imposed sentences as 

“aggregated” when ruling on motions for sentence reduction. See United States v. 

4 Mr. Albers proceeds without a lawyer in this appeal. Therefore we “liberally 

construe his filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 

1312, 1315 (10th Cir. 2013). 

Appellate Case: 22-3215 Document: 010110997734 Date Filed: 02/09/2024 Page: 6
7

Brow, 62 F.4th 114, 120 (3d Cir. 2023) (“The BOP’s administrative aggregation of 

[a] sentence does not affect our judicial authority.”); United States v. Martin, 974 F. 

3d 124, 137 (2d Cir. 2020) (“Section 3584(c) provides no textual support for the 

position that sentences may be aggregated for the purpose of resentencing, nor has 

any court interpreted the statute in such a fashion.”);5 Llewlyn, 879 F.3d at 1295

(“[D]istrict courts’ judicial decisions under § 3582 do not constitute an 

‘administrative purpose.’” (quoting § 3584(c)); Vaughn, 806 F.3d at 643–44 (“A 

sentence reduction under § 3582(c)(2) . . . cannot be described as administrative. 

Applying § 3584(c) to this situation would essentially rewrite the statute to extend 

aggregation to all purposes.”); Gamble, 572 F.3d at 474 (“There is no statutory 

requirement that the district court meld the two sentences into a single, aggregate 

term of imprisonment.”). 

Again, Mr. Albers has identified no contrary authority that treats separately

imposed sentences as “aggregated” for purposes of a motion for sentence reduction, 

and we are not aware of any.

6

 He takes the position that Llewlyn and related 

5 Brow and Martin addressed motions for sentence reduction authorized by the 

First Step Act and brought under § 3582(c)(1)(B). See Brow, 62 F.4th at 119;

Martin, 974 F.3d at 137. Those cases held the First Step Act does not authorize

district courts to reduce a sentence the defendant has fully served. Brow, 62 F.4th at 

121; Martin, 974 F.3d at 140. We do not address that question or interpret the First 

Step Act or § 3582(c)(1)(B) here, where Mr. Albers sought relief under § 3582(c)(2).

6 To the extent Mr. Albers relies on cases which may have treated 

simultaneously imposed sentences for multiple counts of conviction as aggregated,

they are non-precedential and non-binding on this court, and they do not address 

§ 1B1.10(b)(2)(C). See United States v. Clarke, 499 F.App’x 579, 580–81, 582 (7th 

Cir. 2012) (holding § 3582(c)(2) motion to reduce completed crack cocaine sentence 

was not moot because aggregated with simultaneously imposed sentence for gun 

Appellate Case: 22-3215 Document: 010110997734 Date Filed: 02/09/2024 Page: 7
8

decisions were “decided wrongly,” but he has not explained how he believes those 

decisions were in error. See Aplt. Br. at 3-H. We conclude that his separately

imposed Kansas and Oklahoma prison terms are not “aggregated” for purposes of 

deciding his eligibility for relief under § 3582(c)(2). Our conclusion is consistent 

with cases presenting facts we find indistinguishable for purposes of the relevant 

analysis, see Llewlyn, 879 F.3d at 1295; Vaughn, 806 F.3d at 643–44, and we find no 

reason to reach a different result here.

D.

In addition to arguing his sentences should be aggregated, which was his only 

argument in district court, see R. at 66–67, Mr. Albers raises several additional 

arguments and authorities on appeal. These include: new arguments based on habeas 

corpus cases; reliance on cases where defendants were sentenced simultaneously for 

multiple counts of conviction (including related drug and firearm offenses and crack 

cocaine offenses); cases seeking sentence reduction under the First Step Act;

conviction; affirming denial of motion) and United States v. Bolin, No. 2:02-cr-176-

1, 2008 WL 928397, at *1, 3 (S.D. Ohio April 7, 2008) (granting motion to reduce a 

fully served drug sentence treated as aggregated with simultaneously imposed 

sentence for related gun conviction).

These cases are also readily distinguished. They involved simultaneously 

imposed sentences for drug offenses and related firearm violations under 18 U.S.C. 

§ 924(c). Here Mr. Albers’s two sentences were imposed separately, by different 

courts in unrelated cases, and left no question which sentence was to be served first.

We need not decide here whether multiple terms of imprisonment that are 

imposed simultaneously might, in other circumstances, be appropriately treated as 

aggregated. Accord Vaughn, 806 F.3d at 644 (“Even supposing that simultaneously 

imposed consecutive sentences could be aggregated for the purpose of a § 3582(c)(2)

sentence reduction—an issue that we do not decide here—this case is different 

because [the defendant’s] sentences were imposed separately.”). 

Appellate Case: 22-3215 Document: 010110997734 Date Filed: 02/09/2024 Page: 8
9

Oklahoma state cases, and various district court and unpublished circuit court cases 

which Mr. Albers argues are analogous to his own. See Aplt. Br. at 3, 3-J. He also 

appeals to “common sense,” id. at 5, 15–16; makes new arguments based on the use 

of the indeterminate article to refer to “‘a’ term of imprisonment” in USSG 

§ 1B1.10(a)(1), see id. at 3, 3-F; and argues his uncompleted term of supervised 

release meant he was still “in custody on his Kansas sentence,” giving the district 

court jurisdiction to reduce that sentence, see id. at 4.

“[A]bsent extraordinary circumstances, arguments raised for the first time on 

appeal are waived.” Little v. Budd Co., 955 F.3d 816, 821 (10th Cir. 2020). 

Exceptions to this rule may be warranted “when the issues involved are questions of 

law, the proper resolution of which are beyond doubt, and the failure to address the 

issues would result in a miscarriage of justice”; an intervening change in the law may 

also warrant an exception. Xlear, Inc. v. Focus Nutrition, LLC, 893 F.3d 1227, 

1234–34 (10th Cir. 2018) (internal quotation marks omitted).

We conclude circumstances here do not warrant reaching the arguments 

Mr. Albers could have raised at the district court but did not. Other than his 

argument related to supervised release, all of Mr. Albers’s newly raised arguments

have been raised and rejected in the decisions of other circuits cited above, which 

were decided before he briefed his motion at the district court. See e.g., Llewlyn, 879 

F.3d at 1296–98 (rejecting arguments based on habeas corpus cases and 

distinguishing cases involving simultaneously imposed sentences); Vaughn, 806 F.3d 

at 644 (distinguishing “sentences that were imposed at the same time by the same 

Appellate Case: 22-3215 Document: 010110997734 Date Filed: 02/09/2024 Page: 9
10

judge” from sentences that were imposed separately); id. at 645 (rejecting textual 

argument identical to the one raised by Mr. Albers; “The fact that § 1B1.10 uses a 

singular ‘a’ says nothing about whether [a defendant] is serving one single term of 

imprisonment or two separate . . . terms . . . .”). Without revisiting in detail the 

analyses of prior cases, we conclude that Mr. Albers’s new arguments on appeal do 

not warrant relaxing the waiver rule: proper resolution of the issues is not “beyond 

reasonable doubt” and failure to reach them would not result in a miscarriage of 

justice. 

Also waived is Mr. Albers’s newly raised argument that the term of supervised 

release included in his Kansas sentence gave the district court jurisdiction over his 

§ 3582(c)(2) motion, even after he had fully served the Kansas prison term. This 

argument was not raised before the district court, which therefore made no legal 

rulings or factual findings on it. 

Finally, as to Mr. Albers’s appeal to “common sense,” and his arguments 

regarding what the Sentencing Commission intended for defendants convicted on 

multiple counts of conviction, these arguments do not change the authority to modify 

an otherwise final sentence provided by § 3582(c)(2), which is limited by the 

statute’s terms and § 1B1.10(b)(2)(C). See Mannie, 971 F.3d at 1148; McGee, 615 

F.3d at 1292. Even if relief has been made available to other defendants in situations 

Mr. Albers finds broadly analogous to his own, cases resolved on different legal 

grounds do not expand the limited authority provided by § 3582(c)(2). 

Appellate Case: 22-3215 Document: 010110997734 Date Filed: 02/09/2024 Page: 10
11

III.

For the foregoing reasons, we affirm the district court’s denial of Mr. Albers’s 

motion under 18 U.S.C. § 3582(c)(2).

Judge Rossman concurs in the judgment only.

Entered for the Court

Allison H. Eid

Circuit Judge

Appellate Case: 22-3215 Document: 010110997734 Date Filed: 02/09/2024 Page: 11