UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

MARLON ALONZO SMITH, 

 Defendant - Appellant. 

No. 24-4036 

(D.C. No. 2:16-CR-00020-DN-1) 

(D. Utah) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before TYMKOVICH, EID, and ROSSMAN, Circuit Judges. 

_________________________________ 

Marlon Alonzo Smith, proceeding pro se, appeals the district court’s denial of 

his motion to reduce his sentence and its refusal to reconsider that denial. Because 

the district court lacked authority to vary downward from the amended guidelines 

sentencing range, we affirm. 

* After examining the briefs and appellate 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 argument. This order and judgment is not binding precedent, 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 with Fed. R. App. P. 32.1 

and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 20, 2024

Christopher M. Wolpert 

Clerk of Court

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I. Background 

A jury convicted Smith of possessing methamphetamine with an intent to 

distribute, in violation of 21 U.S.C. § 841(a)(1). At sentencing, the district court 

calculated a total offense level of 38 and a criminal history category of III—including 

a two-point increase for committing the offense while on probation. His guideline 

imprisonment range was 292 to 365 months, but the district court varied downward 

after considering Smith’s history and characteristics pursuant to 18 U.S.C. 

§ 3553(a)(1). He was sentenced to 180 months’ imprisonment, and we affirmed his 

conviction. United States v. Smith, 800 Fed. App’x 658, 662 (10th Cir. 2020). 

In November 2023, Smith filed a motion pursuant to 18 U.S.C. § 3582(c)(2) 

asking the district court to reduce his sentence under the retroactive guideline 

changes enacted by the U.S. Sentencing Commission in its Amendment 821. The 

Amendment limits the criminal history points given to defendants who commit an 

offense while on probation, and Smith argued he was eligible for a two-point 

reduction. He asked the district court to reduce his sentence—and apply a 

proportional variance—in accordance with his amended guideline range of 262 to 

327 months. The district court denied his motion for a sentence reduction, and 

subsequently denied his motion for reconsideration. 

II. Discussion 

We review a district court’s denial of a § 3582(c)(2) motion and its denial of a 

motion for reconsideration for abuse of discretion. United States v. Randall, 666 

F.3d 1238, 1241 (10th Cir. 2011); United States v. Sharkey, 543 F.3d 1236, 1238 

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(10th Cir. 2008). But “[t]he scope of a district court’s authority in a resentencing 

proceeding under § 3582(c)(2) is a question of law that we review de novo.” United 

States v. Rhodes, 549 F.3d 833, 837 (10th Cir. 2008). 

Section 3582(c)(2) allows a court to reduce a sentence for a “defendant who 

has been sentenced to a term of imprisonment based on a sentencing range that has 

subsequently been lowered by the Sentencing Commission . . . if such a reduction is 

consistent with applicable policy statements issued by the Sentencing Commission.” 

18 U.S.C. § 3582. See also Dillon v. United States, 560 U.S. 817, 821–22 (2010) 

(“When the Commission makes a Guidelines amendment retroactive, 18 U.S.C. 

§ 3582(c)(2) authorizes a district court to reduce an otherwise final sentence that is 

based on the amended provision. Any reduction must be consistent with applicable 

policy statements issued by the Sentencing Commission.”). 

“The Sentencing Commission’s policy statements regarding modifications of 

previously imposed sentences are set forth in [U.S.S.G.] § 1B1.10.” Rhodes, 549 

F.3d at 841. Section 1B1.10 states that a “court shall not reduce the defendant’s term 

of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is 

less than the minimum of the amended guideline range.” § 1B1.10. See also Dillon, 560 

U.S. at 822 (“§ 1B1.10(b)(2)(A) forecloses a court acting under § 3582(c)(2) from 

reducing a sentence to a term that is less than the minimum of the amended guideline 

range.”) (internal quotation marks omitted). 

Smith’s 180-month sentence is less than the minimum of the amended guideline 

range of 262 to 327 months. Thus, “[b]ecause this policy statement is binding on 

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district courts pursuant to § 3582(c)(2), the district court . . . lacked the authority to 

impose a modified sentence that fell below the amended guideline range.” Rhodes, 

549 F.3d at 841. The only exception to this rule is if the defendant received the original 

below-guidelines sentence “pursuant to a government motion to reflect the defendant’s 

substantial assistance to authorities.” § 1B1.10(2)(B). This exception does not apply 

here. Smith proceeded to trial and received no reduction in his sentence for 

substantial assistance to authorities. 

Smith advances a few additional arguments. First, he claims the district court 

failed to sign the AO247 form. We can quickly dispose of this argument because it 

lacks support from the record. Second, he argues the district court failed to consider 

the § 3553(a) factors—specifically his post-sentencing conduct—in determining his 

eligibility for a reduction.1

 Any error here is harmless because even if the court 

considered his post-sentencing conduct, it could not have imposed a lower sentence. 

We affirm the district court’s denial of Smith’s motion to reduce his sentence 

1

 “Consistent with 18 U.S.C. § 3582(c)(2), the court shall consider the factors set 

forth in 18 U.S.C. § 3553(a) in determining: (I) whether a reduction in the 

defendant’s term of imprisonment is warranted; and (II) the extent of such reduction, 

but only within the limits described in subsection (b).” § 1B1.10, app. n.1(B)(i). 

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and its refusal to reconsider that denial. We grant Smith’s motion to proceed without 

prepaying costs or fees. 

Entered for the Court 

Timothy M. Tymkovich 

Circuit Judge 

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