UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JESUS MARIO COTA-MEDINA, Defendant - Appellant. No. 21-2063 (D.C. No. 1:06-CR-00151-WJ-1) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MORITZ , EBEL , and KELLY , Circuit Judges.

________________ _________________ Defendant-Appellant Jesus Mario Cota-Med ina, a federal inmate, appeals from the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence. On appeal, Mr. Co ta-Medina challenges the district court’s conclusion that he materially benefitted from his plea agre ement, arguing that the district court made a legal error that impaired its analysis of his motion. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 31, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-2063 Document: 010110665339 Date Filed: 03/31/2022 Page: 12 Background In January 2006, Mr. Cota-Medina was indicted on four counts: (1) possession of more than 50 grams of methamphetamine with intent to distribute, 21 U.S.C. § 841(a)(1) and (b)(1)(B); (2) possession of firearms in furtherance of Count 1, 18 U.S.C. § 924(c)(1)(A)(i); (3) maintaini ng an establishment for the purpose of distributing methamphetamine, 21 U.S.C. § 85 6(a)(1); and (4) possession of firearms in furtherance of Count 3, 18 U.S.C. § 924(c)(1)(C)(i). In March 2006, Mr. CotaMedina entered into a Type-C plea ag reement under Federal Rule of Criminal Procedure 11(c)(1)(C). He pled guilty to Counts 1 and 2 in exchange for the dismissal of Counts 3 and 4. The part ies stipulated to a 20-year term of imprisonment. In November 2006, the di strict court accepte d Mr. Cota-Medina’s plea and sentenced him to 135 months’ im prisonment on Count 1 and a consecutive 105 months’ imprisonment on Count 2, for a total of 240 months. In 2014, the Sentencing Commission enact ed amendments to the Sentencing Guidelines that retroactiv ely reduced the guideline range for Count 1 from 108–135 months to 87–108 months. S ee U.S.S.G. supp. app. C, am ends. 782, 788 (2014). In 2015, Mr. Cota-Medina filed a § 3582(c)(2) motion to reduce his sentence on Count 1 based on the new guideline range. Section 35 82(c)(2) states that a defendant who has been sentenced “based on a sentencing range” that is later reduced may be eligible for a sentence reduction. The district c ourt dismissed Mr. Cota-Medina’s motion, concluding that it lacked ju risdiction because his senten ce was “based on” a Type-C agreement, not on a guideline range. Appellate Case: 21-2063 Document: 010110665339 Date Filed: 03/31/2022 Page: 23 In 2018, the Supreme Court held that “i n the usual case the court’s acceptance of a Type-C agreement and the sentence to be imposed pursuant to that agreement are ‘based on’ the defendant’s Guidelines ra nge.” Hughes v. Unite d States, 138 S. Ct. 1765, 1776 (2018) (quoting 18 U.S.C. § 3582(c)(2)). In May 2021, Mr. Cota-Medina renewed his § 3582(c)(2) motion to reduce his sentence on Count 1, arguing that Hughes held that the district court has jurisdiction over his motion. The government opposed the motion, arguing that even under Hughes, Mr. Medina’s sentence was not based on the guidelines, and regardless, the 18 U.S.C. § 3553( a) factors do not warrant a sentence reduction. Additiona lly, Mr. Cota-Medina argued that under current law, he could not have been char ged with Count 4 because a single act of firearms possession can only su pport one § 924(c) charge. In June 2021, the district court held Mr. Cota-Medina was el igible for relief under § 3582(c)(2) given the Supreme Cour t’s decision in Hu ghes, rejecting the government’s argument. Un ited States v. Cota-Medina, No. 06-cr-00151, 2021 WL 2227992, at *2 (D.N.M. June 2, 2021). However, the cour t declined to grant such relief, finding that a sentence reduction wa s unwarranted given the “considerable benefits” Mr. Cota-Medina received from hi s plea agreement and its analysis under the § 3553(a) factors. Id. at *3–4.

Discussion We review a district court’s denial of a reduction in sentence under 18 U.S.C. § 3582(c)(2) for an abuse of discretion. Un ited States v. Battle , 706 F.3d 1313, 1317 Appellate Case: 21-2063 Document: 010110665339 Date Filed: 03/31/2022 Page: 34 (10th Cir. 2013). An abuse of discretion occurs when the district court “relies on an incorrect conclusion of law or a clea rly erroneous finding of fact.” Id. Federal courts generally “may not modi fy a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). Section 3582(c)(2) provides an exception when a defendant “has been sentenced to a term of imprisonment based on a sentencing range that ha s subsequently been lowered by the Sentencing Commission.” In determining whethe r to grant a sentence reduction under § 3582(c)(2), the court engages in “a two-st ep process.” Battle, 706 F.3d at 1317. First, the court must determine the defenda nt’s eligibility for a sentence reduction by finding that the applicable guideline range has been lowered as a result of a retroactive guideline amendment. See id. Then, “if a reduction is authorized, the court may ‘consider any § 3553(a) factors a nd determine whether, in its discretion, the reduction authorized . . . at step one is warranted in whole or in part under the particular circumstances of the case.’” Id. (quoting United States v. McGee, 615 F.3d 1287, 1292 (10th Cir. 2010)). A court “can consider the be nefits the defendant gained by entering a Type-C agreement when it decides whether a reduction is appropriate.” Hughes, 138 S. Ct. at 1777. Here, the district court found that Mr. Co ta-Medina is eligib le for a sentence reduction at step one because the guideline range for Count 1 has been lowered. Cota-Medina, 2021 WL 2227992, at *2. Howe ver, the district court declined to grant relief at step two because Mr. Cota-Medina’s origin al sentence was “fair and reasonable given the considerab le benefits [he] received and the charges that were Appellate Case: 21-2063 Document: 010110665339 Date Filed: 03/31/2022 Page: 45 dismissed.” Id. at *3. Mr . Cota-Medina argues that the district court erred because intervening precedent demonstrates that he did not benefit from the dismissal of Count 4 under his Type-C agreement. However, the distri ct court correctly determined that Mr. Cota-Med ina still benefitted from the dismissal of Count 3, and it did not abuse its discretion in taking this conclusion into account in analyzing the relevant § 3553(a) factors. Mr. Cota-Medina argues th at “recent shifts in la w regarding [Count 4] demonstrate that even if Mr . Cota-Medina had been convicted of [Count 4], he would have substantial grounds to challenge th at count.” Therefore, Mr. Cota-Medina asserts that the dismissal of this charge yielded no material benefit. But the district court actually agreed with Mr . Cota-Medina on this point. It stated that Mr. CotaMedina “is correct that . . . the initial i ndictment in this matter [for Count 4] was improper under subsequent law.” Id. at *3 n.1. The distri ct court went on to explain that “this error does not undermine the Co urt’s reasoning” becau se Mr. Cota-Medina “still benefited” from the dismissal of Count 3. Id. The court reasoned that because Count 3 carried a sentence of up to 20 years’ imprisonment, Mr. Cota-Medina “lessened his sentencing expo sure significantly by entering into the plea agreement.” Id. at *3. Moreover, in its analysis of the § 3553(a) factors, the district court indicated that it was only co nsidering “the dismissal of one serious drug trafficking charge” in finding that the § 3553(a) fact ors “strongly caution against granting the Motion.” Id. at *4. Appellate Case: 21-2063 Document: 010110665339 Date Filed: 03/31/2022 Page: 56 Mr. Cota-Medina also argues that inconsis tencies in the district court’s order show that it erred in its analysis. Firs t, Mr. Cota-Medina point s out that the court erroneously stated that Mr. Cota-Medin a “was not actually charged with the erroneous second violation of § 924.” However, two se ntences prior, the court acknowledged that Mr. Cota-Medina’s “initi al indictment” on Count 4 was improper. Id. at *3 n.1. This shows th at the court did not err in it s substantive analysis as it knew that Mr. Cota-Medina’s initial indi ctment included the Count 4 charge. Second, Mr. Cota-Medina points out that in th e text of its order, the district court states that Count 3 carries a 20-year statut ory minimum, when it actually carries a 20- year statutory maximum. Again, the dist rict court did not e rr in its substantive analysis because it later c ited to 21 U.S.C. § 856(b) and calculated Mr. CotaMedina’s would-be sentence using the co rrect term of imprisonment for Count 3. 1 See id. “Any reasonable reading of the distri ct court’s opinion woul d conclude that it properly performed its job in assessing [M r. Cota-Medina’s] arguments.” United States v. Hald, 8 F.4th 93 2, 947 (10th Cir. 2021).

1 The district court stated that if Count 3 had not been dismissed, Mr. CotaMedina “could have been sentenced to 10 to 65 years [of] imprisonment.” CotaMedina, 2021 WL 2227992, at *3 n.1. We note that th e actual maximum sentence that Mr. Cota-Medina faced was life imprisonment given that Count 2 carried a maximum sentence of life imprisonment. S ee United States v. Avery, 295 F.3d 1158, 1170 (10th Cir. 2002). Neverthe less, the district court’s ul timate conclusion that Mr. Cota-Medina “avoided significant sentencing exposure” due to the dismissal of Count 3 given “the legal environment during which th e plea was offered” is still sound. See Cota-Medina, 2021 WL 2227992, at *3 n.1. Appellate Case: 21-2063 Document: 010110665339 Date Filed: 03/31/2022 Page: 67 Mr. Cota-Medina argues for the first time in his reply brief that the dismissal of Count 3 did not provide “much benefit” b ecause “[i]t did not a dd any levels to the possession [charge]” under the guidelines used at the time Mr. Cota-Medina was sentenced. We decline to consider this argument because it was not raised below or in the opening brief. See United States v. Leffler, 942 F.3d 11 92, 1197 (10th Cir. 2019). The fact remains that the dismissal of Count 3 still caused Mr. Cota-Medina to avoid sentencing exposure to a charge that carried up to 20 years’ imprisonment. The district court did not rely on a cl early erroneous finding of fact or conclusion of law in finding that Mr . Cota-Medina benefitted from the plea agreement. Thus, the distri ct court did not abuse its di scretion in denying a sentence reduction.
AFFIRMED.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge Appellate Case: 21-2063 Document: 010110665339 Date Filed: 03/31/2022 Page: 7