UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. EDRIN ADRIAN MUNOZ, Defendant - Appellant. No. 16-4110 (D.C. No. 2:10-CR-00511-DB-2) (D. Utah)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , McKAY , and McHUGH , Circuit Judges.

________________ _________________ In 2012, Edrin Adrian Mu noz pled guilty to possessi on of over 50 grams of methamphetamine with intent to distribute in violation of 21 U. S.C. § 841(a)(1). His Presentence Report (PSR) set the base offense le vel at 34. It then added two levels for possessing a dangerous weapon. After a th ree-level reduction for acceptance of responsibility, Mr. Munoz’s total offense le vel was 33. With a Criminal History Category of I, Mr. Munoz’s advisory senten cing guideline range was 135 to 168 months. Because the offense involved at least 50 grams of methamphetamine, Mr. Munoz’s

* After examining the briefs and appella te record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding pr ecedent, except under the doctrines of law of the case, res judicata, and collateral es toppel. 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 

### March 15, 2017
Elisabeth A. Shumaker Clerk of Court- 2 - conviction triggered a statut ory mandatory minimum sentence of ten years under 21 U.S.C. § 841(b), which was also noted in the PSR. At sentencing, the district court acknowle dged that it “can’t give a sentence any less than ten years under the fe deral law” (Sent. Tr. at 8) and noted its “strong inclination to sentence Mr. Munoz to the mandatory minimum sentence of the ten years” ( id. at 4–5). Following its inclination, the court ultimat ely sentenced Mr. Munoz to ten years of imprisonment, i.e., the statutory mandatory minimum. Mr. Munoz did not appeal. Last year, Mr. Munoz filed a motion unde r 18 U.S.C. § 3582(c)(2) to reduce his sentence based on the U.S. Sentencing Co mmission’s Amendment 782, which would lower his base offense level (and his guide line range), and Amendment 788, which made Amendment 782 retroactive. Mr. Munoz also reports that he has “been working very hard at rehabilitation,” that he “accept[s] fu ll responsibility” for his crime, and that he “ha[s] learned many skills during [his] incarce ration.” (Br. at 2.) According to the record, he is enrolled in an ESL class and is working toward his GED. His disciplinary history is minimal and he has mainta ined clear conduct since 2013. Nonetheless, the district court was ob liged to deny Mr. Munoz’s § 3582(c)(2) motion. “[A] district court is authoriz ed to reduce a sentence under § 3582(c)(2) only if the defendant was originally sent enced to a term of imprisonment based on a sentencing
range that has subsequently been lowe red by the Sentencing Commission.” United States v. White , 765 F.3d 1240, 1246 (1 0th Cir. 2014) (internal quotation marks omitted) (emphasis in original). A defendant w ho was sentenced pursuant to a statutory mandatory minimum term of imprisonment wa s not sentenced “based on a sentencing- 3 - range,” and is therefore ineligible fo r a sentence reduction under § 3582(c)(2). See United States v. Smartt , 129 F.3d 539, 542 (10th Cir. 1997); see also United States v. Lagunas , 523 F. App’x 537, 540 (10th Cir. 2013) (“[Defendant] is not serving a sentence based on a sentencing range lowered by the Sentencing Commission because he was sentenced pursuant to the statut ory mandatory minimum sentence.”). Because Mr. Munoz was sentenced pursuant to a statutory mandatory minimum, he is ineligible for a sentence reduction under § 3582(c)(2). Accordingly, the district court rejected the § 3582(c)(2) motion. Howe ver, it would appear that the district court denied the motion on the merits. It should have, instead, dismissed the matter for lack of jurisdiction. See United States v. C.D. , No. 15-3318, 2017 WL 69 4483, at *2 n.2, *4 (10th Cir. Feb. 22, 2017).
We REMAND the matter to the district court with instructions to VACATE its order denying the motion and enter a new or der dismissing the § 3582(c)(2) motion for lack of jurisdiction. Mr. Munoz ’s motion for leave to proceed in forma pauperis on appeal is GRANTED

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Entered for the Court
Monroe G. McKay Circuit Judge