UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. GILBERT RODRIGUEZ, Defendant - Appellant. No. 15-4174 (D.C. No. 1:10-CR-00015-DAK-3) (D. Utah)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , O’BRIEN , and PHILLIPS , Circuit Judges.

________________ _________________ Gilbert Rodriguez, Jr. appeals the dist rict court’s denial of his motion for a sentence reduction under 18 U.S.C. § 3582 (c)(2). Rodriguez and the government reached a plea agreement under Fed. R. Crim . P. 11(c)(1)(C), and the district court sentenced Rodriguez to the agreed upon sentence. Rodri guez now argues that he is entitled to a two-level reduction under Ame ndment 782 to the Sentencing Guidelines. We vacate the district court’s denial with instructions to dismiss Rodriguez’s motion for lack of jurisdiction.

* After examining the briefs and appella te record, this panel 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 The case is therefore submitted without oral argumen t. This order and judgmen t is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 30, 2016
Elisabeth A. Shumaker Clerk of Court2 FACTS In February 2010, Rodriguez was indicted on one co unt of possessing methamphetamine with the intent to di stribute it, in violation of 21 U.S.C. § 841(a)(1). In 2011, he entered into a Rule 11(c)(1)(C) plea agr eement, agreeing to a sentence of 180 months. The district c ourt accepted Rodriguez’s guilty plea and sentenced Rodriguez to 180 months’ imprisonment. Before the sentencing, the probati on office prepared a Presentence Investigation Report (PSR). Under the 20 10 Sentence Guidelines, Rodriguez’s total offense level was 33 (a base offense level of 36 under U.S.S.G. § 2D1.1 and a 3-level reduction for acceptance of responsibility) and his criminal history category was IV, leaving Rodriguez’s advisory guide line range at 188 to 235 months. In March 2015, Rodriguez filed an 18 U.S.C. § 3582 motion to reduce his sentence based on Amendment 782 to the Sentencing Guidelines. Amendment 782 reduced by two offense levels convictions for offenses involving certain weights of certain controlled substances. The dist rict court denied the motion under Freeman v. United States , 563 U.S. 522 (2011). Rodriguez has filed a pro se appeal, so we liberally construe his pleadings. Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). We vacate the district court’s denial a nd instruct it to di smiss the motion for lack of jurisdiction. DISCUSSION We ordinarily review for an abuse of di scretion a district c ourt’s denial of a motion under § 3582(c)(2). United States v. Sharkey , 543 F.3d 1236, 1238 (10th Cir.3 2008). But the issue here is the scope of § 3582, a legal question that we review de

novo. United States v. Graham , 704 F.3d 1275, 1277 (10th Cir. 2013). Although federal courts generally lack jurisdiction to modify a term of imprisonment once it has been imposed, they may modify a sentence when statutorily authorized. United
States v. Smartt , 129 F.3d 539, 540 (10th Cir. 1997 ). Section 3582( c)(2) permits a district court to modify a sentence wher e it has sentenced a defendant “based on a sentencing range that ha s subsequently been lo wered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). “Unle ss the basis for resentencing falls within one of the specific categories authorized by section 3582(c), the district court lack[s] jurisdiction to consider [a defendant’s] request.” Smartt , 129 F.3d at 541. Rodriguez pleaded guilty under a Rule 11(c)(1)(C) plea agreement, which permits the parties to “agree that a spec ific sentence or sentencing range is the appropriate disposition of the cas e.” Fed. R. Crim. P. 11. In Freeman v. United
States , 564 U.S. 522 (2011), the Supreme Court addressed whether a Rule 11(c)(1)(C) sentence is one based on a se ntencing range that the Sentencing Commission had later lowered. The Court re ached a splintered decision with Justice Sotomayor deciding on a narrower groun d than a plurality of the court. 1 Id. at 525– 26. Thus, Justice Sotomayor’s concurrence “represents th e Court’s holding” because

1 The plurality concluded that all defe ndants who enter into Rule 11(c)(1)(C) agreements (necessarily sp ecifying a particular senten ce or sentence range as a condition of the guilty plea) are eligible for reli ef under § 3582(c)(2). Freeman , 564 U.S. at 529–33. Four Justices dissented and would have conc luded that no prison term imposed under a Rule 11(c)(1)(C) agr eement is ever eligible for § 3582(c)(2) relief. Id. at 544, 548–49 (Roberts, C.J., dissenting).4 it was “the narrowest grounds of decision.” United States v. Graham , 704 F.3d 1275, 1278 (10th Cir. 2013); see Marks v. United States , 430 U.S. 188, 193 (1977) (“When a fragmented court decides a case and no si ngle rationale explaining the result enjoys the assent of five Justices, ‘the holding of the court ma y be viewed as that position taken by those Members w ho concurred in the judgments on the narrowest grounds . . . .’” (quoting Gregg v. Georgia , 428 U.S. 153, 169 n. 15 (1976) (opinion of Stewart, Powell, and Stev ens, JJ.))). Justice Sotomayor concluded that a sentence imposed under a Rule 11(c)(1)(C) plea is “b ased on” the Guidelines when the plea agreement “expressly uses a Guidelines se ntencing range applicable to the charged offense to establish the term of imprisonmen t, and that range is subsequently lowered by the United States Sentencing Commission . . . .” Freeman , 564 U.S. at 534 (Sotomayor, J., concurring). Justice Sotomayor identified two situa tions where a prisoner may qualify for a reduced sentence under § 3582(c) despite being sentenced under a Rule 11(c)(1)(C) plea agreement. The first situ ation occurs when the Rule 11(c)(1)(C) plea agreement calls “for the defendant to be sentenced w ithin a particular Guidelines sentencing range.” Id. at 538. In that limited circumst ance, we know “that the term of imprisonment the court imposes is ‘bas ed on’ the agreed-upon sentencing range within the meaning of § 3582(c)(2).” Id. The second situation occurs when the plea agreement provides “for a spec ific term of impr isonment . . . but also make[s] clear that the basis for the specified term is a Gu idelines sentencing range applicable to the offense to which the defendant pleaded guilty.” Id. at 546 (quoting id. at 5395 (plurality opinion)). If that sentencing range is evident from the pl ea agreement itself, the agreed term of imprisonment that the court imposes is “based on” a Guidelines
range. Id. at 538–39. Rodriguez’s sentence was not based on a Guidelines sentencing range. Instead, his plea agreement required a 180-month sent ence. The agreement does not refer to a proposed sentence “within a particul ar Guidelines sentencing range.” Id. at 2697. Rodriguez cannot avail himself of § 3582 (c)(2) because his sentence does not fall under either of the two Freeman conditions. Rodriguez argues that his plea must be based on a Sentencing Guidelines range because the PSR form included a calculation of his guideline range. Rodriguez states that “the ‘PSR’ proves that the Court relie d upon the 2010 U.S.S.G. Manual when it pronounced a 180-month sentence within th e applicable Sentencing Guidelines range of 151 to 188 months.” 2 Opening Br. at 4. That probation included a guideline calculation in its standard form hardly m eans that Rodriguez’s 180-month sentence under Rule 11(c)(1)(C) was based on his gui deline range. It sta nds to reason that negotiations preceding all plea agreements—i ncluding ones under Rule 11(c)(1)(C)— take account of possible guideline ranges. See Freeman , 564 U.S. at 539 (Sotomayor, J., concurring) (“[P]lea bargaining necessarily occurs in the shadow of the sentencing scheme to which the defendant would otherwise be subject .”). But “[t]he term of imprisonment imposed by the district court . . . is not ‘based on’ those background

2 Significantly, the advisory guideline ra nge did not even in clude Rodriguez’s 180-month sentence. As noted in the PSR, the guideline calculation resulted in an advisory range of 188 to 235 months’ imprisonment.6 negotiations; instead . . . it is based on the binding agreement produced by those negotiations.” Id. As in Freeman , Rodriguez’s sentence was “based on” (set by) his Rule 11(c)(1)(C) plea agreement, and nothi ng in that agreement shows its agreed punishment was explicitly “b ased on” a guideline range. In summary, Rodriguez is not eligible for relief unde r § 3582(c)(2) because his agreed, binding 180-month sentence was not “based on a sentencing range that has subsequently been lowered by the Sentenci ng Commission.” 18 U.S.C. § 3582(c)(2). As such, the district court could not ha ve any jurisdiction to reduce Rodriguez’s sentence under § 3582(c)(2), and the di strict court shoul d have dismissed Rodriguez’s motion for lack of jurisdicti on instead of denying it on the merits. 3
United States v. White , 765 F.3d 1240, 1250 (10th Cir. 2014); United States v. Burks , 301 F. App’x 781, 782 (10t h Cir. 2008) (unpublished). CONCLUSION We remand to the district court with instructions to dismiss Rodriguez’s § 3582(c)(2) motion for lack of jurisdicti on. We grant Rodriguez’s motion for leave to proceed in forma pauperis on appeal.

Entered for the Court
Gregory A. Phillips Circuit Judge

3 The district court stated that Rodr iguez’s “motion for a sentencing reduction should be denied” rather than dismissing it for lack of ju risdiction. R. vol. 1 at 28.