UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JULIAN BELTRAN, Defendant - Appellant. No. 15-8122 (D.C. No. 1:11-CR-00196-ABJ-5) (D. Wyo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , MATHESON, and BACHARACH , Circuit Judges.

________________ _________________ Julian Beltran appeals from the denial of his motion to reduce his sentence under Amendment 782 of the United States Se ntencing Guidelines (“U.S.S.G.” or “Guidelines”) and 18 U.S.C. § 3582(c). Exer cising jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appella te 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 This orde r and judgment is not binding precedent, except under the doctrines of law of the case, re s judicata, and collateral estoppel. It may be cited, however, for its persuasive value c onsistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 4, 2016
Elisabeth A. Shumaker Clerk of Court- 2 - I. BACKGROUND In September 2011, a superseding indictme nt charged Mr. Beltran with conspiracy to traffic in methamphetamine in violation of 21 U.S.C. §§ 841(a )(1), 841(b)(1)(A), and 846. In May 2012, Mr. Beltran entered a pl ea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), which permits parties to “agree that a specific sentence or sentencing range is the appropria te disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statem ent, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).” In the plea agreement, Mr. Beltr an stipulated he conspired to possess with intent to distribute 500 grams or more of methamphetamine and he was subject to an aggravating role enhancement under the Guid elines. Notwithstanding the enhancement and the advisory Guidelines sentencing range, the agreement stated th e parties agreed to a sentence of 120 months. After Mr. Beltran agreed to the guilty plea, the United States Probation Office prepared a presentence report stating the stat utory sentencing range was ten years to life and the advisory Guide lines sentencing range was 135 to 168 months. The district court sentenced him to 120 months. In 2014, the Sentencing Commission promulgated Amendment 782, which provides a retroactive two-level reduction for drug offenses involving many of the controlled substances listed in the Guide lines’ Drug Quantity Table in U.S.S.G. § 2D1.1(c), including methamphetamine. U.S.S. G. app. C suppl., Amends. 782, 788. Mr. Beltran moved for a sentence reductio n under § 3582(c)(2), seeking a two-level- 3 - reduction from his sentence. The district c ourt dismissed Mr. Beltran’s motion because his sentence did not qualify for a reduction u nder § 3582(c)(2). Mr. Beltran appealed.
II. DISCUSSION A. Standard of Review and Legal Background The scope of a district court’s authority under § 3582(c)(2) is a question of law we review de novo. United States v. Graham , 704 F.3d 1275, 1 277 (10th Cir. 2013). “Federal courts generally lack jurisdicti on to modify a term of imprisonment once it has been imposed.” Id. Section 3582(c)(2) is an exception to that rule: it gives courts jurisdiction and discretion to “reduce the te rm of imprisonment, after considering the factors set forth in section 35 53(a) to the extent that they are applicable, if such a reduction is consistent with applicable po licy statements issued by the Sentencing Commission.” A federal court lacks jurisdiction to modi fy a sentence under § 3582(c)(2) when a defendant has entered into a Rule 11(c)(1)(C) plea agreement and the district court has imposed a sentence that is not based on a Guidelines sentencing range. Id. at 1278; see also United States v. Jones , No. 15-2128, 2015 WL 8757254 , at *2 (10th Cir. Dec. 15, 2015) (unpublished) (“Because [the defendan t] entered into a rule 11(c)(1)(C) plea agreement, we must determine whether his sentence was based on the sentencing range that has since been lowered, a question that goes to . . . the district court’s jurisdiction under 18 U.S.C. § 3582(c)(2).”).- 4 - In Freeman v. United States , 131 S. Ct. 2685 (2011), Justice Sotomayor wrote a concurring opinion that st ates the controlling holding. 1 She explained that federal courts have jurisdiction to consider a sentence re duction in two situations when the defendant has entered a Rule 11(c)(1)(C) plea agreement: (1) when the agreem ent “call[s] for the defendant to be sentenced with in a particular Guidelines se ntencing range,” or (2) when the agreement “provide[s] for a specific term of imprisonment—such as a number of months—but also make[s] clear that the basi s for the specified te rm is a Guidelines sentencing range applicable to the offense to which the defendant pleaded guilty.” 131 S. Ct. at 2697-98.
B. Analysis Mr. Beltran’s Rule 11(c)(1)(C) plea agr eement does not meet either of the situations outlined in Freeman . The agreement mentions the Guidelines twice. First, it states, “The Defendant has been advised of § 1B1.3 of the Sentencing Guidelines regarding use of relevant conduct in estab lishing sentence and has read the advisement regarding supervised release as stated in th is Plea Agreement.” ROA, Vol. II at 41. Second, it states, “[T]he evidence to be pres ented by the government at sentencing would prove by a preponderance of th e evidence that the Defendant is subject to an aggravating

1 In Graham , we explained that, along with Justice Sotomayor’s opinion, the Freeman Court issued a plurality opinion and a dissenting opinion that each garnered four votes. 704 F.3d at 1277. Justice Soto mayor’s concurring opinion “charted a middle ground between the plura lity and the dissent.” Id. at 1277-78. We stated, “Every federal appellate court to consider the matter has re ached the same conclusion, and we agree: Justice Sotomayor’s concurrenc e is the narrowest grounds of decision and represents the Court’s holding.” Id. at 1278.- 5 - role enhancement under the U.S. Senten cing Guidelines, section 3B1.1.” Id. at 42. The agreement then states, “Howev er, since this plea agreemen t is made pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, the parties stipulate and agree that a 120 month (10 year) term of imprisonment is a just and appropriate sentence given all aggravating and mitigating factors.” Id. Even though the Guid elines sentencing range was 13 5 to 168 months, the parties agreed to and the district court imposed a 120-month sentence. The agreement does not mention a Guidelines sentencing range, let al one “call for the defendant to be sentenced within a particular Guide lines sentencing range.” Freeman , 131 S. Ct. at 2697. And it does not “make clear that the ba sis for the [120-month] term is a Guidelines sentencing range applicable to the offense to which the defendant pleaded guilty.” Id. Simply put, it does not base the 120-month term on the Gu idelines sentencing range of 135 to 168 months. We conclude Mr. Beltran’s Rule 11(c)(1 )(C) plea agreement was not based on a sentencing range that Amendmen t 782 has lowered. The district court therefore lacked jurisdiction to consider the § 3582(c)(2) motion and properly dismissed it. See United States v. White , 765 F.3d 1240, 1250 (10th Cir. 2014) (stating dismissal of a § 3582(c)(2) motion, rather than denial on the merits, is appropriate when the district court lacks jurisdiction).- 6 - III. CONCLUSION For the reasons stated, we affirm the dist rict court’s dismissal of Mr. Beltran’s motion. ENTERED FOR THE COURT,

Scott M. Matheson, Jr. Circuit Judge