UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JAVIER DOZAL, Defendant - Appellant. No. 19-3041 (D.C. No. 2:09-CR-20005-KHV-8) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , BACHARACH , and McHUGH , Circuit Judges.

________________ _________________ Javier Dozal appeals th e district court’s di smissal of his 18 U .S.C. § 3582(c)(2) motion to modify h is sentence. In 2010 he pled gu ilty to conspiracy to distribute and possess with inten t to distribute more than 500 grams of a mixture or substance containing methampheta mine, in violation of 21 U.S.C. § 841(a)(1). His written plea agreement with the government, entered pursuant to Fed. R. Crim. P.

* After examining the briefs and appellate record, this panel h as determined unanimously to honor the parties’ request for a deci sion on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Ci r. R. 34.1(G). The case is therefore submitted without oral argument. This order and judg ment is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 11(c)(1)(C), 1 proposed a 151-month term of in carceration followed by five ye ars of supervised release. The agreem ent specified “that the proposed sentence does not offend the now advisory senten cing guidelines” but indicated th at the parties were “not requesting impos ition of an advisory guideline sentence.” R., Vol. 1 at 53. The United States Probation Offi ce prepared a Presentence Inves tigation Report (PSR). The PSR determine d that a “quantity of methamphe tamine attributed to this conspiracy and reasonabl y foreseeable to . . . Dozal ex ceeds 15 kilograms of methamphetamine (1.5 kilograms of Methamphetamine (actual)), re sulting in a base offense level of 38,” pursuant to U.S. Sentencing Guidelines Ma nual § 2D1.1(c)(1) (2009) (USSG). R., Vol. 3 (sealed ) at 21. After further calcu lations, the PSR arrived at a total offense level of 35 an d a Criminal History Category of I, resulting in an advisory Guideline sentencing ra nge of 168 to 210 months’ impri sonment. The district court adopted the PSR without change, including it s calculation of the Guideline sentencing range. I t accepted the plea agreement and sentenced Dozal to the 151-month term of incarcer ation to which the parties had agreed. Four years after Dozal’s sentenci ng, the United States Sentenci ng Commission adopted Guideline Ame ndment 782. The Amendment, which applies retroactively, reduced the base offense levels a ssigned to certain drug offens es by two levels. See United States v. Green , 886 F.3d 1300, 1302 (10th Cir. 2018); USSG Supp. to

1 Rule 11(c)(1)(C) provides that a plea agreement may “agree th at a specific sentence or sentencing range is the appropriate dispos ition of the case . . . .”3 App. C, Amendment 782. Relying on the Amendment, Dozal moved t he court to modify his sentence pursuant to § 3582(c)(2), which permits a s entencing court to reduce a term of imprisonment if the defendant was “sentenced t o a term of imprisonment based on a sentenci ng range that has subsequently been lowered by the Sentencing Commission.” Id. 2 The district court initially den ied the motion, reasoning that it lacked authority to modify Dozal’s sentence becaus e he had been sentenced pursua nt to his Rule 11(c)(1)(C) plea agreement, not t he Guidelines. We affirmed th at denial. United States v. Dozal , 644 F. App’x 851, 853 (10th Cir . 2016). But subsequent to ou r decision the Supreme Court decided Hughes v. United States , 138 S. Ct. 1765 (2018), holding that a defendant who ente rs a Rule 11(c)(1)(C) plea may seek relief under § 3582(c)(2) “to the extent the p risoner’s Guideline range was a relevant part of the framework the judge used to accep t the plea agreement or determ ine the sentence,”
id. at 1778. After Hughes , Dozal’s counsel negotiated with the government to determine the appropriate relief under Ame ndment 782 and § 3582(c)(2). T heir negotiations culminated in the parties’ submi ssion to the district court of an agreed order proposing a reduction of his ter m of imprisonment from 151 mont hs to 135 months. But the district court concluded that the a greed order did not adequately address the

2 In the plea agreemen t, Dozal waived his right to seek a modif ication of his sentence pursuant to § 3582(c)(2). See R., Vol. 1 at 55. But the government has not sought to enforce that w aiver in these proceedings.4 factors that must be satisfied for § 3582(c)(2) relief. See United States v. C.D. , 848 F.3d 1286, 1289-90 (10th Cir . 2017) (holding that to obtain relief under § 3582(c)(2), a defendant must s how (1) “he was sentenced based on a guideline range the Sentencing Commission lo wered subsequent to [his] sen tencing”; (2) “his request for a senten ce reduction is consistent with th e Commission’s policy statements related to § 3582(c )(2)”; and (3) “he is entitled to relief in light of the applicable sentencing factors f ound in 18 U.S.C. § 3553(a).”); cf. also generally United States v. Aragon , 922 F.3d 1102, 1115 (10th Cir. 2019) (Holmes, J., concurring) (“[I]t is the distri ct court’s job (in the first in stance)—not the parties’—to determine the proper Guidelines r ange for a particular defendan t . . . .”). The district court expressed con cern that Dozal’s “base offense level appears to remain at level 38 because t he Court likely would attribute at least 8.15 kilograms of methamphetamine (actual) to him by using the conversion perc entage set forth in the [PSR].” R., Vol. 1 at 67. I t ordered Dozal t o file a memo randum in support of his request for relief and orde red the government to file a res ponse. Dozal filed the required memora ndum. The government did not re spond. After reviewing Dozal’s submissi on the district court concluded that it lacked jurisdiction to reduce his se ntence under § 3582(c)(2). The district court noted that unde r the Guidelines, the sentenc ing court generally calculates both the qua ntity of the methamphetamine m ixture and the quantity of actual methamphetami ne and uses whatever correspond ing offense level is greater to calculate the def endant’s base offense level. See USSG Drug Quantity5 Table, n.B (2009). Under the 20 09 Guidelines, a quantity of 15 KG or more of methamphetamine or 1.5 KG or more of methamphetamine (actual) t riggered a base offense level of 38. See USSG § 2D1.1(c)(1). Under Am endment 782, however, the threshold quantity to trigger o ffense level 38 increased to 45 KG or more of methamphetamine or 4.5 KG or more of methamphetamine (actual). The question, then, was what specific quantity of methamphetamine should be a ttributed to Dozal. To answer this question the dist rict court examined its previou s findings, including those portions of the PSR it had adopted at sentencin g. The court focused on Paragraphs 64 thro ugh 70 of the PSR, which read as follows: 64. Various quantities of metham phetamine were seized throughou t this investigation; some of the seizures were the result of traffic stops, and others were the result of consen t searches and/or search warran ts. At one residence, the methamphetamine e xhibits seized were determined to be nearly 100% pure (Exh ibit 17, 1,792 n et grams at 98.3% purity; Exhibit 18.01, 214.9 net grams at 98.7% p urity; and Exhibit 18.03, 6.1 net grams at 92.6% purity). Other seizures ranged in purity from 11.9% to 5 6.9%. The average purity of all the methamphetamine seized was 46.05%. 65. In paragraphs 43-44, Naranjo discusses the drug debt she ow es to Javier Dozal for prior drugs whi ch he supplied to her. 66. In paragraph 46, Javier Dozal tells Naranjo that he is send ing his brother to her to provide her with“the set of sheets” (ounces of crystal methamphetamine). 67. In paragraph 57, Javier Dozal tells Nino he had “two exact little carpets” (two ounces of cry stal methamphetamine). 68. In paragraph 58, Javier Dozal tells Nino he has the “seven dwarfs kind” (kilograms of cocaine) and the “kind that I work” (unknown ounc es of crystal methamphetamine). 69. In paragraph 59, Javier Dozal tells Nino he needed to “get rid of two or 3” (2-3 ounces of crystal methamphetamine).6 70. Additionally, numerous co-defe ndants in this case cooperate d with the government and provided information relative to the conspiracy. Defendant Secundino Arias-Garcia (N ino) advised the case agent that he met Javier Dozal and his broth er, Carlos Dozal-Alvarez, in 2003

. Mr. Arias-Garcia reported that from that time until the time of his arrest in January of 2009, he bou ght multiple ounces of methamphetamine f rom both brothers. He reported on average purchasing two to three ounces a week from Guero and Charlie. Ove r a six year period, purchasin g two ounces of methamphetamine [per] week, would result in 624 ounce s of methamphetamine or 17.690 kilograms. Other defendants reported purchasing methamphetamine from Javier Dozal as well. R., Vol. 1 at 88 (quoting PSR). Adding together the drug quantit ies discussed in paragraphs 66 through 70 that could be attributed to Dozal, the district court derived a tota l methamphetamine mixture of 17.916 kilograms. 3 It then multiplied this f igure by 46.05%, which according to paragraph 64 was the average purity of the methamp hetamine seized during the investigation of the conspiracy. Applying this perc entage, the court concluded the total amount of me thamphetamine (actual) attribut able to Dozal was 8.25 kilograms, which exceeded t he threshold of 4.5 kilograms r equired for offense level 38 after Amendment 782. B ecause Dozal’s base offense lev el remained 38, the district court determined he wa s not entitled to relief under A mendment 782. See United States v. Gay , 771 F.3d 681, 685 (10th Cir . 2014) (“Section 3582(c)(2) does not authorize a sentence reducti on if a guideline amendment doe s not have the effect

3 The district court found that p aragraphs 66 through 69 each s upported a finding of 56.7 grams of metham phetamine attributable to Dozal. See R., Vol. 1 at 89 n.1. Paragraph 70 attributed an additional 17.690 kilograms to Dozal. See id. at 88.7 of lowering the defendant’s app licable guideline range.” (inter nal quotation marks omitted)). We review the district court’s decision to deny a sentence redu ction under § 3582(c)(2) for an abuse of discretion. United States v. Battle , 706 F.3d 1313, 1317 (10th Cir. 2013). “A district c ourt abuses its d iscretion when it relies on an incorrect conclusion of law or a clearly erroneous finding of fact.” Id. A district court may make a suppl emental calculation of drug qu antity for purposes of a § 3582(c)(2) moti on, and “may look to its previou s findings, including any portions of a PSR” it adopted t o arrive at that calculation

. Id. at 1319. “Although a district court may es timate the amount of drugs att ributable to a defendant,” it “must err on th e side of caution” in doing so. Id. at 1320 (internal quotation marks omitt ed). The information relied on for the di strict court’s calculation must have “some basi s of support in the facts of th e particular case and bear[] sufficient indi cia of reliability.” United States v. Dalton , 409 F.3d 1247, 1251 (10th Cir. 2005) (internal quotation marks omitted). Dozal argues the district court clearly erred by attributing mo re than 4.5 kilograms of actual methamphetami ne to him. He characterizes t he district court’s approach as “no better than gue sswork.” Aplt. Opening Br. at 1 8. He does not challenge the accuracy of the per centage figure contained in PS R paragraph 64 or the quantity of methamphetamine attri buted to him under paragraph 7 0. But he contends the court should not have used t he purity figure from paragraph 64 because it did not attribute the methamphetamine des cribed in that p aragraph to hi m. And without such8 an attribution, he argues, there is no record evidence concerni ng the purity of the methamphetamine attributable to him from which the district cou rt could have derived its supplemental dr ug quantity calculation. We reject this argument, however , because the facts indicate th e district court’s methodology was suffic iently reliable to support its co nclusion. The seized methamphetamine described in Pa ragraph 64 was distributed as pa rt of the same conspiracy as the methamphetami ne attributed to Dozal in Paragr aph 70. 4 Although

4 Paragraph 70 attributes to Dozal methamphetamine distributed over a six-year period, beginning in 20 03. The first five years of th is period predated the charged conspiracy and the acts th at formed the factual basis f or Dozal’s plea. See Plea Agreement, R., Vol. 1 at 48- 52 (describing conspiracy and relevant conduct from March 2008 through January 2009). Dozal argues that the d istrict court should not have “attribute[ed] Paragra ph 64’s purity percentages to th e wholly unrelated methamphetamine” that was “supp lied by Mr. Dozal to Arial-Garci a beginning in 2003, some five years prior t o the charged conspiracy.” Id. at 24 (emphasis added). Dozal did not make this argumen t, or indeed any argument pertai ning to the purity of the methamphetamine des cribed in Paragraph 70, in his district court memorandum. While acknowledging t hat the district court had or dered him “to brief . . . whether Mr. Dozal’s drug quantity precludes a sentencing reduction,” R., Vol. 1 at 71, his argument centered on whether the methamphetamine des cribed in Paragraph 70 could even properly be attributed to him under cur rent Tenth Circuit law, see id. at 71-75. He has not renewed his argument concerning attribut ion on appeal. See Aplt. Opening Br. at 26 n.2. Dozal argues that he was not re quired to lodge an exception to the district court’s supplemental calculations to preserve his issues for ap peal. See Aplt. Opening Br. at 14. But we concl ude he should have raised his d rug purity arguments in his sentencing reduction me morandum. In its order requiring him to file the memorandum, the district court di rected him to “address the cal culation of the base offense level under the amended guidelines.” R., Vol. 1 at 67. It specifically warned Dozal that it contemplated appl ying the purity percentage in Pa ragraph 64 to the methamphetamine attributed to hi m in the PSR. It further advis ed him that if it did so, the amount of actual metham phetamine attribut ed to him woul d likely continue to dictate a base off ense level of 38. See R., Vol. 1 at 67 & n.3. Notwithstanding this advisement, Dozal did not object to the district court’s propos ed methodology.9 the drugs described in Paragra ph 64 were not attributed to Doza l when determining drug quantity , the district court did not cle arly err in estimating that the purity percentages between the methamphe tamine described in paragraphs 64 and 70 were likely to be similar.

Because Dozal did not challenge t he district court’s method for calculating purity, though provided an opport unity to do so, he has forfeit ed his argument concerning the district court’ s method of calculating drug puri ty. See Havens v. Colo. Dep’t of Corrs. , 897 F.3d 1250, 1259 (10th Cir. 2018) (“We ordinarily deem arguments that litigants fail to p resent before the district co urt but then subsequently urge on appeal to be forfeited.” ). Nor has he asked us to revi ew his unpreserved arguments under a pla in-error standard. See id. at 1260 (discussing defendant’s obligation to present plain-erro r argument to excuse forfeiture in district court). But the government has not objected on preservation grounds to his general drug purity argument, and we have chosen to re solve that issue on the merit s. See Abernathy v. Wandes , 713 F.3d 538, 552 (10th Cir. 201 3) (“[T]he decision regarding what issues are appropriate to entertain on appeal in instances of lack of preservation is discretionary.”). That said, taking the further st ep to address Dozal’s novel and unpreserved additional challenge to purity tha t draws a contrast between me thamphetamine distributed by members of the c onspiracy both preceding the con spiracy and during the conspiracy, would go too fa r. Dozal presents only limited briefing on this unique issue. He cite s cases in which we found it erroneous for the d istrict court to estimate quantities of drug shipments by ex trapolating the varying size of shipments from one time period to another. Our dis cussion of the extrapolation me thod used in those cases shows how the calculation t ypically was performed in a ma nner that was insufficiently supported and unfai r to the defendant. But Doza l cites no case extending this principle to cal culating the purity of methamphe tamine distributed prior to a charged conspiracy, w here the quantities involved we re distributed by the conspirators. Nor have we locat ed such a case. And because he did not raise this issue in district court, we do not have the benefit of the dist rict court’s analysis. Under these circumstances, we d ecline to reach this additional issue.10 We conclude that the di strict court’s appro ach is particularly appropriate given that the average calculated in Paragraph 64 was based on numero us seizures of methamphetamine made over time a nd under varying circumstances (traffic stops, consent searches, and search wa rrants). It is logical to reaso n that the larger and more varied the samp le used to calculate purity, the more likel y it is that the average derived accurately reflects the overall percentage purity of th e methamphetamine distributed as part of the scheme. Cf. generally Mass. ex rel. Dep’t of Pub. Welfare v. United States , 737 F. Supp. 120, 127 n.9 (D. M ass. 1990) (“Basic statistical theory—which applies irrespectiv e of the statistical model used —holds that the greater the subsample size, the s maller the variance, and the g reater the precision of the statistical measurement.”), aff’d , 984 F.2d 514 (1st Cir. 1993). In other words, there is little likelihood that t he 46.05% figure represented a n “outlier” percentage that unfairly or inaccurately ref lected the purity of the metha mphetamine attributed to Dozal. 5 We thus conclude that the dist rict court’s use of the purity figure in paragraph 64 was not clearly erroneous. 6

5 Dozal complains that on one o ccasion a buyer returned drugs t o him because they were of poor qualit y, which “suggests that Mr. Doz al dealt in low-purity methamphetamine.” See Aplt. Opening Br. at 20. But according to paragraph 64, the methamphetamine seized by law en forcement from the conspirators was as low as 11.9 percent pure. The incident Dozal describes is not inconsi stent with the facts described in paragraph 64.

6 In relying on this purity figur e, the district court observed that “[t]he PSRs of several co-defendants in cluded the same paragraph for t he same purpose” of determining the average purity o f the methamphetamine involved in the conspiracy.11 We affirm the district court’s order dismissing Dozal’s motion for relief under § 3582(c)(2). 7 Dozal’s motion to expedite this appeal is granted.

Entered for the Court

Jerome A. Holmes Circuit Judge

R., Vol. 1 at 90. In rounding out our analysis, we briefly not e that Dozal cites this language in arguing that the distr ict court relied on other def endants’ PSRs without giving him notice and an opportunity to res pond to the informat ion within the PSRs. But there is no indication that t he district court relied on an ything unique about the codefendants’ PSRs to justify th e method it used in Dozal’s cas e; rather, it simply noted that the PSRs took the sam e approach in both Dozal’s and the codefendants’ cases.

7 Dismissal rather than denial is the appropriate disposition o f an ineligible § 3582(c)(2) motion. See United States v. White , 765 F.3d 1240, 1250 (10th Cir. 2014). Although the district court’s order did not specify whether it denied or dismissed the motion, the ord er concluded “the Court lacks j urisdiction to reduce defendant’s sentence under Sect ion 3582(c)(2).” R., Vol. 1 at 84. We elect to treat this disposition as a dismissal.