## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 5 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. FERNANDO OLVERA-GARCIA, also known as Alberto Gonzalez,

Defendant - Appellant. UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. FERNANDO TORRES-MARQUEZ,

Defendant - Appellant.

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. HUMBERTO URIBE-RAMIREZ,

Defendant - Appellant. No. 02-2066 (D.C. Nos. CR-01-415-LH & CIV-02-130-LH/DJS) (D. New Mexico)

No. 02-2079 (D.C. Nos. CR-01-665-JC & CIV-02-165-JC/LFG) (D. New Mexico)

No. 02-2114 (D.C. Nos. CR-01-421-LH & CIV-02-256-LH/KBM) (D. New Mexico)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. -2- ORDER AND JUDGMENT *
Before SEYMOUR , EBEL , and O’BRIEN , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). These cases are therefore ordered submitted without oral argume nt. In these three cases, defendants appeal from the de nial of their motions to modify their criminal sentences under 18 U.S.C. § 3 582(c)(2) based on a subsequent change in the sentencing guidelines. Th e district court denied the motions on the merits. Because each appellant was sentenced in accordance with a plea agreement specifying an offense level, the d istrict court should have dismissed without reaching the merits. Each of these defendants pleaded guilty to reenteri ng the United States illegally as a deported alien previously convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a)(1), (2), and (b)(2) . At the time they were sentenced, USSG § 2L1.2(b)(1)(A) called for a sixte en-level increase for a-3-

defendant previously convicted of an aggravated fel ony. Effective November 1, 2001, however, the Sentencing Commission promulgate d Guidelines Amendment 632, which amended § 2L1.2(b)’s aggravate d-felony enhancement to provide for an increase of eight to sixteen levels according to the seriousness of the earlier aggravated felony. See USSG Supp. to App. C at 224-25 (Nov. 1, 2001); USSG § 2L1.2(b) (Nov. 1, 2001). In response , each of these defendants filed a pro se motion to modify his sentence under 18 U.S.C. § 3582(c)(2), arguing that Amendment 632 had lowered the authoriz ed term of imprisonment. The district court denied each motion on the merits , and each defendant appealed. We review the district court’s determinations de novo. See United States v. Smartt , 129 F.3d 539, 540 (10th Cir. 1997).

No. 02-2066, United States v. Fernando Olvera-Garcia The presentence report calculated defendant’s crimi nal history category at IV and his offense level at twenty-one, which inclu ded the sixteen-level increase under § 2L1.2(b). Defendant entered into a plea ag reement pursuant to Fed. R. Crim. P. 11(e)(1)(C), however, under which he agreed to be sentenced at an offense level of seventeen. The sentencing court accepted the plea agreement and sentenced defendant within the stipulated range
. When a defendant enters into a valid plea agreementpursuant to Fed. R. Crim. P. 11(e)(1)(C), “he may not seek a re duction in his sentence via-4-

18 U.S.C. § 3582(c)(2). United States v. Trujeque , 100 F.3d 869, 869 (10th Cir. 1996). Defendant has neither argued nor demonstrat ed that his Rule 11(e)(1)(C) plea agreement is invalid. As a result, the distri ct court should have dismissed defendant’s § 3582(c)(2) motion without addressing the merits of his argument regarding Amendment 632.

No. 02-2079, United States v. Fernando Torres-Marquez The presentence report calculated defendant’s crimi nal history category at III and his offense level at twenty-one, which incl uded the sixteen-level increase under § 2L1.2(b). Defendant entered into a Rule 11 (e)(1)(C) plea agreement, however, under which he agreed to be sentenced at an offense level of seventeen. The sentencing court accepted the plea agreement an d sentenced defendant within the stipulated range. As in No. 02-2066, this defendant has neither argue d nor demonstrated that his Rule 11(e)(1)(C) plea agreement is invalid. Th erefore, the district court should have dismissed defendant’s § 3582(c)(2) moti on without addressing its merits. See Trujeque , 100 F.3d at 869.

No. 02-2114, United States v. Humberto Uribe-Ramirez The presentence report calculated defendant’s crimi nal history category at IV and his offense level at twenty-one, which inclu ded the sixteen-level increase-5-

under § 2L1.2(b). Defendant entered into a Rule 11 (e)(1)(C) plea agreement, however, under which he agreed to be sentenced at an offense level of seventeen. The sentencing court accepted the plea agreement an d sentenced defendant within the stipulated range. As in Nos. 02-2066 and 02-2079, this defendant has neither argued nor demonstrated that his Rule 11(e)(1)(C) plea agreeme nt is invalid. As a result, the district court should have dismissed defendant’s § 3582(c)(2) motion without addressing its merits. See Trujeque , 100 F.3d at 869.
Conclusion In each of these cases, we VACATE the district court’s merits decision and REMAND with instructions to dismiss defendant’s mot ion. The mandate shall issue forthwith.

Entered for the Court

Terrence L. O’Brien Circuit Judge