UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JACQUELINE M. GARCIA, a/k/a Jacqueline Marie Garcia, a/k/a Jacqueline Molina, Defendant - Appellant. No. 17-8024 (D.C. Nos. 2:16-CV-00002-SWS & 2:13-CR-00004-ABJ-1) (D. Wyo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before HARTZ , O’BRIEN , and HOLMES , Circuit Judges.
Jacqueline M. Garcia, a fe deral prisoner proceeding w ithout the assistance of counsel, seeks a certificate of appealability (COA) to a ppeal the district court’s dismissal of her motion un der 28 U.S.C. § 2255 as an unauthorized second or successive motion. We deny a COA and dismiss this matter. In 2013, Ms. Garcia was convicted of c onspiracy to possess with intent to distribute, and to distribute, methamphetamine in violati on of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846; and of possession of a fi rearm in furtherance of a drug trafficking

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel.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 

### June 20, 2017 Elisabeth A. Shumaker Clerk of Court- 2 - crime in violation of 18 U.S. C. § 924(c)(1)(A). She was sentenced to 180 months in prison. We affirmed on direct appeal. See United States v. Garcia , 635 F. App’x 528, 531 (10th Cir. 2015) ( unpublished). Ms. Garcia fi led her first § 2255 motion on January 8, 2016. It remains pending at issu e before the district court. In October 2016, Ms. Garcia filed another motion entitle d “Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 and Amendment 794 of U.S.S.G. 3B1.2,” arguing that a Ninth Circuit case made Amendment 794 to the Se ntencing Guidelines retroactive to her sentence. Without ruling on the first § 2255 motion, the distri ct court concluded Ms. Garcia’s second motion raised new claims and th e court therefore lacked jurisdiction because the motion was an unauthorized second or successive § 2255 motion that should first be file d in this court. The distri ct court dismissed the second motion and Ms. Garcia fi led a notice of appeal. To appeal, Ms. Garcia must obtain a COA. See United States v. Harper , 545 F.3d 1230, 1233 (10th Cir. 2008). Where, as here, a di strict court has dismissed a filing on procedural grounds, the COA app licant must show both “that jurists of reason would find it debatable wh ether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). We need not consider the procedural aspect of the Slack test because Ms. Garcia has not satisf ied the merits aspect.- 3 - In her COA brief, Ms. Garcia request s a reduction in her sentence based on Amendment 794. Even review ing her application with the liberality due pro se applicants, see Garza v. Davis , 596 F.3d 1198, 1201 n. 2 (10th Cir. 2010), Ms. Garcia’s claim is based on th e Sentencing Guidelines rather than the Constitution. As a result, we must d ecline to issue a COA a nd dismiss the appeal. See United States v. Harfst , 168 F.3d 398, 400 (10t h Cir. 1999) (stating that “nonconstitutional sentencing issues . . . woul d not support issuance of a [COA] because they do not assert the denial of a constitutional right.”); accord United States v. Christensen , 456 F.3d 1205, 1206 (10th Cir. 2006) (same in Ar med Career Criminal Act context). We note that Ms. Garcia’s motion appears to us to be one under 18 U.S.C. § 3582(c)(2) seeking a reduction in her sentence, and not a second § 2255 motion. Thus, the rationale underlying the distri ct court’s dismissal order — that Ms. Garcia’s motion was a second or successive § 2255 motion — was mistaken. Nevertheless, Ms. Garcia is not entitled to a COA under Slack ’s standard to challenge the district court’s dismissal order — that is, the outcome that the district court reached in its dismissal order properly must stand undisturbed. The COA is denied and the matter is dismissed.

Entered for the Court

ELISABETH A. SHUMAKER, ClerkCase No. 17-8024, United States v. Garcia O’BRIEN , J., concurring. I concur only in the result. Garcia’s inartful motion sought a sentence reduction based upon Amendment 794 to the sentenci ng guidelines. 18 U.S.C. § 3582(c)(2) permits a court to reduce an imposed sent ence if the “sentencing range . . . has subsequently been lowered by the Sentencing Commission . . . if such a reduction is consistent with applicable policy statemen ts issued by the Sentencing Commission.” Section 1B1.10 of the guidelines contains the relevant policy statement: a sentence reduction under § 3582(c)(2) is permitted only if the amendment reducing the sentencing range is listed in USSG § 1B1.10(d). See United States v. Avila , 997 F.2d 767, 767 (10th Cir. 1993); see also Dillon v. United States , 560 U.S. 817, 826 ( 2010) (“A court’s power under § 3582(c)(2) . . . depends in the firs t instance on the [Sen tencing] Commission’s decision not just to amend th e Guidelines but to make th e amendment retroactive.”); United States v. Washington , 655 F. App’x 714, 716 (10th Cir. 2016) (unpublished) (“To be eligible for a sentence reduction under § 3582(c)(2), the applicab le Guidelines range must have been lowered by an amendment to the Guidelines listed in § 1B1.10(d) of the Guidelines Manual.”). Amendment 794 is not listed there. Section 3582(c)(2) cannot help Garcia. In the order dismissing her motion, the judge concluded she was not entitled to a sentence reduction, correctly explaining why. (D ist. Ct. Doc. 9 at 4-5.) Garcia’s motion did not mention 18 U.S.C. § 3582(c)(2) and I see no r eason to read something, particularly a meaningless something, into the motion. Construing the motion as one2 based upon the statute would accomplish nothing and the district judge ought not to be faulted for failing to embark upon a fool’s errand. Contemplating the number of angels that might dance on the head of a pin may satisfy intellectual urges, but it offers no practical value. Moreover, the motion cannot be construed as a supplement to her original § 2255 motion because it raises a new claim “separat e and distinct” from those raised in her original motion and is time-barred. United States v. Espinoza-Saenz , 235 F.3d 501, 504- 05 (10th Cir. 2000). The judge properly treated Garcia’s motion as a second § 2255 motion.