UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, 

v. 

STEVEN WAYNE HANCOCK, 

Defendant - Appellant. 

No. 15-8123 

 (D.C. No. 1: 13-CR-00162-NDF-1) 

(D. Wyo.) 

 

ORDER AND JUDGMENT*

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

Steven Wayne Hancock pled guilty to conspiracy to possess with intent to 

distribute and to distribute methamphetamine. 21 U.S.C. §§ 841(a)(1), 846. His plea 

 

*

 After examining the briefs and appellate record, this 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This order and judgment is an unpublished decision, not binding precedent. 10th 

Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. 

It is appropriate as it relates to law of the case, issue preclusion and claim preclusion. 

Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). 

Citation to an order and judgment must be accompanied by an appropriate parenthetical 

notation B (unpublished). Id. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 15, 2016

Elisabeth A. Shumaker 

Clerk of Court
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agreement, entered into pursuant to Rule 11(c)(1)(C), called for a stipulated sentence of 

151 months imprisonment. See Fed. R. Crim. P. 11(c)(1)(C) (allowing the parties to, 

inter alia, “agree that a specific sentence or sentencing range is the appropriate 

disposition of the case;” “such a recommendation or request binds the court once the 

court accepts the plea agreement”). The judge accepted the plea agreement and 

sentenced him to the specified term. 

Almost a year later, the United States Sentencing Commission retroactively 

reduced the base offense level applicable to Hancock’s crime of conviction by two. 

USSG App. C supplement, amends. 782, 788 (Nov. 1, 2014). This prompted Hancock to 

file a motion to amend his sentence under 18 U.S.C. § 3582(c)(2). The judge concluded 

he was not eligible for a reduction and denied the motion. 

Generally, a “court may not modify a term of imprisonment once it has been 

imposed.” 18 U.S.C. § 3582(c); see also United States v. Graham, 704 F.3d 1275, 1277 

(10th Cir. 2013) (“Federal courts generally lack jurisdiction to modify a term of 

imprisonment once it has been imposed.”). But § 3582(c)(2) contains an exception. It 

gives a judge the discretion to reduce the sentence “of a defendant who has been 

sentenced to a term of imprisonment based on a sentencing range that has subsequently 

been lowered by the Sentencing Commission.” § 3582(c)(2) (emphasis added). 

In Freeman v. United States, the Supreme Court addressed whether a defendant, 

like Hancock, who pleads guilty under a Rule 11(c)(1)(C) agreement may seek a sentence 

reduction under § 3582(c)(2) when the otherwise applicable guideline range is 

retroactively amended. 564 U.S. 522 (2011). In her controlling concurrence, see 
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Graham, 704 F.3d at 1278, Justice Sotomayor concluded that a term of imprisonment 

imposed pursuant to a Rule 11(c)(1)(C) plea agreement is normally “‘based on’ the 

agreement itself, not on the judge’s calculation of the Sentencing Guidelines.” 564 U.S. 

at 534 (Sotomayer, J., concurring). Nevertheless, she identified two scenarios in which a 

Rule 11(c)(1)(C) agreement is “based on” a guideline sentencing range: (1) the agreement 

“call[s] for the defendant to be sentenced within a particular Guidelines sentencing 

range” or (2) the agreement provides for a specific term of imprisonment but also 

“make[s] clear that the basis for the specified term is a Guidelines sentencing range 

applicable to the offense to which the defendant pleaded guilty.” Id. at 538-39. Neither 

is present in this case. Hancock’s plea agreement did not ask the judge to sentence him 

within a particular guideline range nor did it “expressly use[] a Guidelines sentencing 

range to establish the term of imprisonment.” Id. at 539. Indeed, no range is mentioned 

in the agreement.1

 

 

1

 The agreement does twice mention the guidelines. First, it provides: “The 

Defendant has been advised of § 1B1.3 of the Sentencing Guidelines regarding use of 

relevant conduct in establishing sentence and has read the advisement regarding 

supervised release as stated in this Plea Agreement.” (R. Vol. 1 at 12.) Second, under 

the section outlining the government’s obligations, it says: “If the Defendant fully accepts 

responsibility during the presentence investigation conducted by the United States 

Probation Office, the United States agrees to recommend the court grant a reduction of 

the appropriate number of offense levels to reflect his acceptance of responsibility. See

U.S.S.G. § 3E1.1.” (Id. at 14.) “But simply mentioning the Guidelines in a plea 

agreement does not ‘make clear’ what sentencing range is applicable.” United States v. 

Jones, 634 F. App’x 649, 651 (10th Cir. 2015) (unpublished). What is clear is that 

Hancock’s plea agreement does not mention a guideline range or even provide the 

information necessary to calculate such range because it does not indicate his criminal 

history category. Id. at 652 & n.1. 
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Nevertheless, Hancock claims his sentence was “based on” the guidelines because 

the probation officer calculated an advisory guideline range of 188-235 months and noted 

the court would need to vary downward two-levels to arrive at the stipulated sentence 

(151 months). But USSG § 6B1.2(c) requires the district judge to “use the Guidelines as 

a yardstick” in deciding whether to accept a stipulated sentence in a Rule 11(c)(1)(C) 

agreement. Id. at 536. Thus, it was necessary for the probation officer to calculate the 

advisory guideline range so the judge could ensure the agreed upon sentence was 

appropriate. In any event, it is the terms of the Rule 11(c)(1)(C) plea agreement itself, as 

opposed to the words or actions of the judge or probation officer, that determine whether 

a sentence specified in the agreement is “based on” a guideline sentencing range. Id. at 

538- 540. The terms of Hancock’s plea agreement do not specify that the stipulated 

sentence was in any way tethered to a guideline sentencing range. 

Finally, he claims the judge erred in denying his § 3582(c)(2) motion because he 

never waived the right to bring that motion in his plea agreement. No one says he did. 

But the fact he did not waive a right does not mean he is eligible for it. 

The district court’s analysis was correct. However, the motion should have been 

dismissed, rather than denied. Graham, 704 F.3d at 1279. We VACATE the order 

denying the motion and REMAND for dismissal of the motion for lack of jurisdiction. 

Entered by the Court: 

Terrence L. O’Brien 

United States Circuit Judge