UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JUAN MANUEL CORTEZ-DIAZ, Defendant - Appellant. No. 21-3216 (D.C. No. 2:11-CR -20031-JWL-1) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

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

________________ _________________ Proceeding pro se, Juan Co rtez-Diaz appeals an order denying his motion for a reduced sentence under 18 U.S.C. § 3582(c)(1)(A). 1 For the reasons set out below, we affirm. A jury convicted Cortez-Diaz of severa l drug offenses ste mming from his role in an interstate methamphetamine operati on. Even though Cortez-Diaz had no prior

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This orde r and judgment is not binding precedent, except under the doctrines of law of the ca se, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 1 We construe Cortez-Diaz’s pro se brie f liberally, but we do not act as his advocate. Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10th Cir. 2008). FILED United States Court of Appeals Tenth Circuit 

### April 14, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-3216 Document: 010110671022 Date Filed: 04/14/2022 Page: 12 convictions, his recommended sentence under the United States Sentencing Guidelines (the Guidelines) was life in pr ison, based primarily on the weight and purity of the drugs involved and the a pplication of several offense-level enhancements. The district court ultimat ely imposed the recommended Guidelines sentence of life in prison, and we affi rmed that sentence as procedurally and substantively reasonable. See United States v. Cortez-Diaz , 565 F. App’x 741, 750 (10th Cir. 2014) (unpublishe d). Seven years later, in 2021, Cortez-Diaz filed the motion at issue in this a ppeal, alleging that “extraord inary and compelling reasons” warranted a reduction in his sentence. § 3582(c)(1)(A). The district court disagreed and denied the motion, and Cortez-Diaz appeals. 2 Cortez-Diaz argues that the district court abused its discretion in denying his § 3582(c)(1)(A) motion. See United States v. Mannie , 971 F.3d 1145, 1155 (10th Cir. 2020) (reviewing denial of sentence-reduction motion for abuse of discretion). To reduce a defendant’s sentence under § 3582(c)(1 )(A), the district court must find that

2 Notably, the district court bypasse d the government’s threshold argument that Cortez-Diaz failed to e xhaust administrative remedies, see § 3582(c)(1)(A), reasoning that it need not address th e argument because exhaustion is not a jurisdictional requirement. Although we ha ve since confirmed that exhaustion is nonjurisdictional, we made clear that it remains a manda tory claims-processing rule. See United States v. Hemmelgarn , 15 F.4th 1027, 1030–31 (10th Cir. 2021). Accordingly, the district court shoul d have addressed exhaustion when the government properly invoked it below. See Hamer v. Neighborho od Hous. Servs. of Chicago , 138 S. Ct. 13, 17 (2017) (“If properly invoked, mandator y claim-processing rules must be enforced.”). Ne vertheless, we resolve this appeal on the merits (as the district court did) because th e government declined to file a brief on appeal and thus waived the exhaustion issue. See Hemmelgarn , 15 F.4th at 1031 (treating exhaustion argument as waived and reaching merits because government did not renew it on appeal). Appellate Case: 21-3216 Document: 010110671022 Date Filed: 04/14/2022 Page: 23 a reduction is (1) justified by “extraordinar y and compelling reasons ”; (2) “consistent with applicable policy st atements issued by the Se ntencing Commission”; and (3) supported by “the factors set forth in [18 U.S.C.] § 3553(a), to the extent that they are applicable.” United States v. McGee , 992 F.3d 1035, 1042 (10th Cir. 2021). Here, the district court determined that Cortez-Diaz failed the first requirement because he alleged no extraordinary and compelling reas ons to reduce his sentence. We agree. As in the district court, Cortez-Di az primarily argues that an intervening change in law justifies a re duced sentence. Specifically, he notes that a few years after he was sentenced, Congress lowere d the mandatory minimum prison term for some drug offenses fr om life to 25 years. See First Step Act of 2018, Pub. L. No. 115-391, § 401, 132 Stat. 5194, 5220–21 (2018) (amendi ng 21 U.S.C. § 841(b)(1)). But as the district court expl ained, that change does not affect Cortez-Diaz: His life sentence resulted from the appl ication of the Guidelines, not a statutory mandatory minimum. Indeed, Cortez-Diaz could not have received the relevant mandatory minimum because it requires tw o prior felony convictions, see § 841(b)(1)(A), and he “had no countable criminal[-]history points,” Cortez-Diaz , 565 F. App’x at 745 n.8. Since the intervening legal change Cort ez-Diaz cites does not apply to him, the district court properly determined that such change does not qualify as an extraordinary and compelling r eason to reduce his sentence. Aside from an intervening change in la w, the only other circumstance CortezDiaz mentions is his “postc onviction rehabilitation” effort s, particularly his prison employment. Aplt. Br. 14. A statute makes clear, however, that “[r]ehabilitation of Appellate Case: 21-3216 Document: 010110671022 Date Filed: 04/14/2022 Page: 34 the defendant alone shall not be considered an extraord inary and compelling reason” for a sentence reduction. 28 U.S.C. § 994(t); see also McGee , 992 F.3d at 1043. Thus, Cortez-Diaz’s rehabilitation, without more, does not sup port § 3582(c)(1)(A) relief. In sum, because Cortez-Diaz offered no extraordinary and compelling reasons to reduce his sentence, the di strict court did not abuse it s discretion in denying his § 3582(c)(1)(A) motion. We affirm.

Entered for the Court
Nancy L. Moritz Circuit Judge Appellate Case: 21-3216 Document: 010110671022 Date Filed: 04/14/2022 Page: 4