UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. CLIFFORD A. DODDS, Defendant - Appellant. No. 19-3077 (D.C. No. 2:13-CR-20043-CM-1) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , McKAY , and BACHARACH , Circuit Judges.

________________ _________________ Clifford A. Dodds ap peals from a district court order dismissi ng his motion for a sentence reduction. Exercising ju risdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND Mr. Dodds pled guilty to drug and firearm offenses. In the ple a agreement entered into under Federal Rule of Criminal Procedure 11(c)(1)( C), the parties agreed

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument wo uld not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral argument . This order and judgment is no t binding precedent, except under the doctrines of law of the case, res judicata, an d collateral estoppel. It may be cited, however, for its persuas ive value consistent with Fed . R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 3, 2019
Elisabeth A. Shumaker Clerk of Court2 Mr. Dodds should be sentenced to 210 months in prison. The Pre sentence Investigation Report (“PSR”) det ermined that Mr. Dodds was a ca reer offender under United States Sentencing Guid eline (“U.S.S.G.”) § 4B1.1 1 and that his sentencing range should be 262 to 327 months . Nevertheless, the district court accepted the Rule 11(c)(1)(C) plea agreement and sentenced Mr. Dodds to 210 months. He did not file a direct appeal. Mr. Dodds moved under 28 U.S.C . § 2255 for habeas relief, asser ting his counsel was ineffective because he failed to object to the PSR’s determ ination that his prior convictions qualified him as a career offender u nder § 4B1.1. The district court denied this claim. This court denied Mr. Dodds a certificate of appea lability (“COA”) for appellate review. Mr. Dodds next moved under 18 U. S.C. § 3582(c)(2) to reduce his sentence based on Amendment 782 to the Guidelines and Hughes v. United States , 138 S. Ct. 1765 (2018). The district court denied the motion, hol ding that nei ther Amendment 782 nor Hughes affects sentences based on § 4B 1.1, the career offender Guidel ine.

1 U.S.S.G. § 4B1.1(a) states: A defendant is a career offe nder if (1) the defendant was at least eighteen years ol d at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled subs tance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.3 II. DISCUSSION On appeal, Mr. Dodds argues he w as not sentenced as a career o ffender and that Hughes authorizes a sentence reduction under Amendment 782 because he entered into a Rule 11(c)(1)(C) bi nding plea agreement . Aplt. Br. at 2. A. Legal Background Title 18 U.S.C. § 3582(c)(2) aut horizes a sentence reduction fo r “a defendant who has been sentenced to a term of i mprisonment based on a sentenc ing range that has subsequently been lowered by the Sentencing Commission.” Amendment 782 lowered the offe nse levels under U.S.S.G. § 2D1.1

. 2 It reduced by two levels the base offense levels of crimes involving many of the controlled substances listed in the Guide lines’ Drug Quantity Table in § 2 D1.1(c). See U.S.S.G. app. C, Amend. 782; 3 United States v. Green , 886 F.3d 1300, 1302 (10th Cir. 2018). But it did not lower the sentencing range for § 4B1.1 career offend ers. See United States v. Akers, 892 F.3d 432, 433 (D.C. Cir. 2018).
In Hughes , the Supreme Court said a defe ndant may seek § 3582(c)(2) reli ef on the ground he entered into a plea agreement under Fed. R. Crim. P. 11(c)(1)(C). 138 S.

2 “This amendment revises the gui delines applicable to drug traf ficking offenses by changing how the base offens e levels in the Drug Quantity Ta ble in § 2D1.1 . . . incorporate the statutory manda tory minimum penalties for such offenses.” U.S.S.G. app. C, Amend. 782, comment . (effective Nov. 1, 2014).

3 U.S.S.G. § 2D1.1(c) contains a Drug Quantity Table that sets t he base offense level for possession of various drug quantities.4 Ct. at 1778. But it also recogni zed that § 3582(c)(2) authoriz es a sentence reduction “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” Id. at 1775 (quoting 18 U.S.C. § 3582(c)). Hughes clarified that Rule 11(c)(1)(C ) plea agreements are “based on” a Guidelines range—and therefore eligible for § 3582(c)(2) relief —if the Guidelines range “was part of the framework the d istrict court relied on in impo sing the sentence or accepting the agreement.” Id. Because “the Sentencing Guidelin es prohibit district courts from accepting [Rule 11(c)(1)(C)] agreements without first eval uating . . . the defendant’s Guidelines range,” the Court hel d that “in the usual case . . . the sentence to be imposed pursuant to [a Rule 11(c)(1)(C)] agreement [is] ‘based on’ the defendant’s Guidelines range.” Id. at 1776. But if the record clearly indic ates that an amended “Guidelines range was not a relevant part of the analytic fra mework the judge used to deter mine the sentence or to approve the agreement, . . . the def endant’s sentence was not b ased on that sentencing range, and relief under § 3582(c)(2) is unavailable.” Id. (quotations and citations omitted).
B. Analysis Mr. Dodds argues he was not sen tenced as a career offender beca use he was sentenced to 210 months under a “ [Rule] 11(c)(1)(C) binding ple a.” Aplt. Br. at 2. Even if this were so, he would be e ligible for a sentence reduction under § 3582(c)(2) only if his sentence were “based on a s entencing range that [was] subse quently . . . lowered by5 the Sentencing Commission.” 18 U. S.C. § 3582(c)(2). Our § 358 2(c)(2) analysis must focus, therefore, on “the reasons for the sentence that the dis trict court imposed, not the reasons for the parties’ plea agreement.” Hughes , 138 S. Ct. at 1776. The only sentencing range the court relie d on at Mr. Dodds’s sentencing hearing was for a career offender, and Amendment 782 di d not lower the career offender G uideline. The record shows the district c ourt calculated the advisory Gui delines range of 262 to 327 months using the care er offender Guideline, U.S.S.G. § 4B1.1. The court ultimately sentenced Mr. Dodds to 210 months after determining that “a variance would be appropriate in this case fro m the guideline range sentence.” ROA, Vol. 1 at 81. The court never mentioned or applie d § 2D1.1(c). In other words, t he court looked to the Guideline range for § 4B1.1 car eer offender status, which falls outside Amendment 782’s coverage. This leaves Mr. Dodds with no basis to argue for a s entence reduction under § 3582(c)(2) or Amendment 782. Although Hughes recognized that Rule 11(c)(1)(C ) plea agreements are often “based on” the defendant’s Gui delines range for the purposes of a § 3582(c) motion, see 138 S. Ct. at 1776, the Court als o acknowledged the statutory r equirement that, to qualify for a sentence reduction, the def endant’s sentence also must be “based on a sentencing range that has subsequently been lowered by the Sentencing Comm ission,” 18 U.S.C. § 3852(c)(2). That requirement was satisfied in Hughes because the district court calculated the Guidelines sente ncing range using the drug quant ity Guidelines, which were later revised under Amendment 782. See Sentencing Hearing Transcript, United6 States v. Hughes , No. 4:13-CR-043-01-HLM-WEJ (N .D. Ga. Nov. 6, 2015), Dist. Ct. Doc. 106 at 5-6; see also Hughes , 138 S. Ct. at 1778. Here, neither the plea agreement, the change of plea transcript , nor the sentencing transcript even ment ioned the drug quantity Guidelin es. The district court calculated a Guidelines range u sing the § 4B1.1 career offender Guideline. It then varied downward from that range t o reach the sentence the parti es agreed to in the plea agreement. Amendment 782 do es not affect § 4B1.1. Accord ingly, Mr. Dodds’s sentence was not “based on a sent encing range that [was] subseq uently . . . lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).
III. CONCLUSION The district court correctly det ermined it lacked authority und er § 3582(c)(2) to reduce Mr. Dodd’s sentence. We affirm the district court’s judgment.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge