UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. CARLOS VINCENT GILCHRIST, Defendant - Appellant. No. 18-3155 (D.C. No. 2:12-CR-20066-KHV-40) (D. Kan.)

ORDER AND JUDGMENT *

Before PHILLIPS , McKAY , and O’BRIEN , Circuit Judges.

In 2013, Carlos Gilchrist pled guilty to conspiracy to manufacture, to possess with intent to distribute, and to dist ribute 280 or more grams of co caine. 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), (b)(1 )(A)(iii). The Fed. R. Crim. P. 11(c)(1)(C) plea

* Oral argument would not mater ially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). W e have decide d this case on the briefs. This order and judgment is an u npublished decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpub lished decisions is not enco uraged, but not prohibited. Fed. R. App. 32.1. Citation is a ppropriate as it relates to la w of the case, issue preclusion and claim preclusion. Unpublishe d decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Cita tion to an order and judgment must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

. FILED United States Court of Appeals Tenth Circuit 

### February 8, 2019
Elisabeth A. Shumaker Clerk of Court- 2 - agreement called for a stipulated sentence of 180 months’ impri sonment. The Presentence Report (PSR) determined Gilchris t was a “career offender” under § 4B1.1 of the United States Sentencing Guidelines (U SSG), which resulted in a guidel ine range of 292 to 365 months’ imprisonment. The distric t judge adopted the PSR but ac cepted the plea agreement and sentenced him to the stipulated lesser term. Subs equently, the United States Sentencing Commission retr oactively lowered the base off ense levels in USSG § 2D1.1 for most drug crimes (Amendment 782). See USSG Supp. to App. C, Amendments 782, 788 (2016). Gilchrist moved for a sentence re duction under 18 U.S.C. § 3582 (c)(2) and Amendment 782. 1 Under § 3582(c)(2), a court may reduce a defendant’s sentence only if it was “based on a sentencing ra nge that has subsequently been lowered by the Sentencing Commission.” The district court dismissed Gilchrist’ s motion for lack of jurisdiction. The judge conclude d Gilchrist was ineligible for a sentence reduction because his sentencing range was based on the career offender g uideline, to which Amendment 782 had no effect. Gilc hrist timely appeals; our revi ew is de novo. United States v. Chavez-Meza , 854 F.3d 655, 657 ( 10th Cir. 2017). Gilchrist argues he is eligible for a sentence reduction becaus e the judge relied on his guideline range in deciding whether to accept the Rule 11(c )(1)(C) agreement and stipulated sentence. See Hughes v. United States , __ U.S. __, 138 S.Ct. 1765, 1775

1 Because Gilchrist appears pro se , we have liberally construed his pleadings but have not served as his advocate. See United States v. Pinion , 584 F.3d 972, 975 (10th Cir. 2009).- 3 - (2018) (holding a defe ndant sentenced unde r a Rule 11(c)(1)(C) plea agreement may be eligible for a sentence reductio n under § 3582(c)(2) if the gui deline range “was part of the framework the district cour t relied on in imposing the sent ence or accepting the agreement”). True, as far as it goes. His Rule 11(c)(1)(C) plea agreement and the conforming sentence do not nec essarily render him ineligible fo r a sentence reduction, but he still must satisfy § 3582 (c)(2), namely its requirement that his senten ce was “based on a sentencing range that has s ubsequently been lowered by the Sentencing Commission.” This he cannot do. Amendment 782 had no effect on the career offender guideline. See United States v. Sharkey , 543 F.3d 1236, 12 39 (10th Cir. 2008); see, e.g. , United States v. Akers , 892 F.3d 432, 434 (D.C. Cir. 2018); United States v. Mateo , 560 F.3d 152, 155 (3d Cir. 2009). Gilchrist’s applicable § 4 B1.1 guideline range thus rema ins unchanged by the revisions to the drug quantity t ables in USSG § 2D1.1 under Ame ndment 782: his offense level remains 35, his criminal history category remains VI, and his applicable guideline sentencing range remains 292 to 3 65 months. Because Amendment 7 82 has no impact on Gilchrist’s applicable guidelin e range, he is not eligible for the requested sentence modification under § 3582(c)(2). According to Gilchrist, this cr eates unfair disparities in sent ences imposed for similarly situated defendants. B ut in so arguing, he completely ignores the career offender guideline, which served as the basis for his sentence, and focuses solely on the drug quantity tables Amendment 782 addressed. All defendants, l ike Gilchrist, sentenced as career offenders are in the sa me boat—none is eligible for a sentence reduction under- 4 - § 3582(c)(2) based on the change s to the drug qua ntity tables m ade by Amendment 782.
See Koons v. United States , __ U.S. __, 138 S. Ct. 1783, 1790 (2018) (refuting petitioners ’ argument that denying them relief under § 3582(c)(2) would crea te “unjustifiable sentencing disparities” because “ [i]dentically situated defenda nts sentenced today may receive the same sentences as petitioners received” (quotations omitted)). Since Gilchrist is ineligible fo r a sentence reduction, the jud ge appropriately dismissed his § 3582(c)(2) motio n for lack of jurisdiction. See United States v. White , 765 F.3d 1240, 1250 (10th Cir. 2014). We AFFIRM

. Gilchrist’s request to proceed on appeal without prepayment of fees ( in forma pauperis or ifp ) is DENIED AS MOOT because we have reached the merits of this appeal. All other pending motions are DENIED AS MOOT

.

Entered by the Court:

Terrence L. O’Brien United States Circuit Judge