UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. FRANCISCO LUBIO, Defendant - Appellant. No. 17-3079 (D.C. No. 2:10-CR-20017-CM-2) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

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

________________ _________________ In 2010, while represented by appointe d counsel, Francisco Lubio pleaded guilty to one count of conspiracy to distribu te and possess with th e intent to distribute over 50 grams of methamphetamine, in viola tion of 21 U.S.C. §§ 846, 841(a)(1), and (b)(1)(A). In a plea agreem ent, Lubio admitted that he possessed 330.9 grams of actual methamphetamine. Based on this amount , the Presentence Investigation Report (“PSR”) calculated a base offense level of 34. See U.S.S.G. § 2D1.1(c)(3) (U.S. Sentencing Comm’n 2009). The PSR then subt racted three offens e levels to account

* After examining the briefs and appellate record, th is 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 

### September 5, 2017
Elisabeth A. Shumaker Clerk of Court2 for Lubio’s acceptance of responsibility, which resulted in a total offense level of 31. When combined with Lubio’s criminal-history category of I, this total offense level produced an advisory guideline range of 108 to 135 months. But, because Lubio’s offense involved at least 50 grams of me thamphetamine, the PSR also noted that Lubio’s conviction triggered a statutory mandatory-minimum sentence of 10 years under 21 U.S.C. § 841(b)(1)(A). Under this circumstance, Lubio’s guideline range became 120 to 135 months. See U.S.S.G. § 5G1.1(c)(2). After receiving no objections from the pa rties, the district court adopted the PSR in full and imposed the mandatory-min imum sentence of 10 years, plus five years of supervised released and a $100 monetary assessment. In 2016, Lubio filed a mo tion under 18 U.S.C. § 3582( c)(2), seeking to reduce his sentence based on the U.S. Senten cing Commission’s Amendment 782, which lowered the base offense level from 34 to 32 for offenses invol ving 330.9 grams of actual methamphetamine. But th e district court dismissed Lubio’s motion for lack of jurisdiction, concluding that, because of the 10-year statutory mandatory minimum, Lubio’s advisory guideline range had not been lowered. Lubio now appeals. We review “de novo the scope of a distri ct court’s authority to resentence a defendant in a § 3582(c)(2) proceeding.” United States v. Gay , 771 F.3d 681, 685 (10th Cir. 2014). Under § 3582(c)(2), “a district court is authorized to reduce a

sentence . . . only if the defendant was originally ‘sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.’” United States v. White , 765 F.3d 1240, 1246 (10th Cir.3 2014) (quoting § 3582(c)(2)). But when a di strict court sentences a defendant to a statutory mandatory-minimum sentence, it bases the defendant’s sentence on the mandatory minimum rather th an “a sentencing range that has subsequently been lowered,” § 3582(c)(2), maki ng the defendant “ineligibl e for a sentence reduction under § 3582(c)(2),” United States v. Munoz , 682 F. App’x 635, 636 (10th Cir. 2017) (unpublished). Here, the district court sentenced L ubio to a statutory mandatory-minimum sentence of 10 years, and Amendment 782 does not lower his sentencing range in that circumstance. So Lubio is ineligible for a sentence re duction under § 3582(c)(2). Therefore, the district court properly dismissed Lubio’s motion for lack of jurisdiction, and we AFFIRM. 1

Entered for the Court
Gregory A. Phillips Circuit Judge

1 Based on Lubio’s financial inability to pa y, the district court granted Lubio’s motion to proceed in forma pauperis (“ IFP ”) on appeal. Order, May 24, 2017, ECF No. 70. We do not reevaluate that decision. See Fed. R. App. P. 24(a)(2) (providing that a party may proceed IFP on appeal where the district court has granted leave to do so).