UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JAMES HOWARD JENKINS, II, Defendant - Appellant. No. 17-7015 (D.C. No. 6:14-CR -00014-RAW-1) (E.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

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

________________ _________________ James Howard Jenkins II appeals the dist rict court’s denial of his motion to reduce his sentence under 18 U.S.C. § 3582(c )(2). We conclude that Jenkins isn’t eligible for a sentence re duction under § 3582(c)(2), b ecause he wasn’t sentenced based on a sentencing range later lowere d by the Sentencing Commission. That means Jenkins has failed to establish ju risdiction under § 3582(c)(2). Exercising jurisdiction under 28 U.S.C. § 1291, we vacate the district court’s order denying

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 8, 2018
Elisabeth A. Shumaker Clerk of Court2 Jenkins’s motion on the merits, and remand to the district court to dismiss the motion for lack of jurisdiction. BACKGROUND During a traffic stop in October 2013, po lice officers searched Jenkins’s car and found 342.8 grams of a white crystal substance (lat er determined by the U.S. Drug Enforcement Administration labor atory to include 271.3 grams of actual methamphetamine). In February 2014, a federa l grand jury in the Eastern District of Oklahoma indicted Jenkins on a charge of po ssessing, with intent to distribute, 50 grams or more of a mixtur e containing a detectable amount of methamphetamine, see 21 U.S.C. § 841(a)(1), (b)(1)(B). On May 23, 2013, the parties filed a pl ea agreement under Fed. R. Crim. P. 11(c)(1)(C). In this plea ag reement, the parties agreed—subject to the court’s acceptance—to apply U.S.S.G. § 2D1.1(c)(7), which set a base offense level of 26. At the change-of-plea hearing that same day, the governm ent estimated the advisory guideline range to be 92 to 115 months of imprisonment, referencing U.S.S.G. § 2D1.1(c)(7). On November 6, 2013, at the sentenci ng hearing, the gove rnment explained that it had agreed to a ba se offense level of 26 in an ticipation of Amendment 782’s becoming law and reducing by two levels the base offense level for Jenkins’s methamphetamine weight. Otherwise, if the parties had used the 2013 sentencing guidelines manual, the 342.8 grams of a mixture contai ning methamphetamine would have required a base offense level of 28. See U.S. Sentencing Guidelines Manual §3 2D1.1(c)(6) (U.S. Sentencing Comm’n 2013). The district court accepted the parties’ Rule 11(c)(1)(C) plea agreement, in cluding the base offense level of 26. 1 As it turned out, Jenkins was senten ced days after Amendment 782 became effective on November 1, 2014. See U.S. Sentencing Guidelines Manual app. C, amend. 782 (U.S. Sentencing Comm’n 2014). So had the district court declined the binding plea agreement, Jenkins would ultimat ely have received the same benefit of a two-level reduction to his base offense le vel, whether he late r entered a nonbinding plea agreement or even been c onvicted at trial. The district court sentenced Jenkins to the low end of the sentencing range of 92 to 115 months (calculated by using total offense level of 23 and criminal -history category of VI). In May 2015, Jenkins moved to reduce his sentence based on Amendment 782. But, as stated, Jenkins had already receive d the benefit of this amendment. That detail left Jenkins inelig ible for relief under § 3582(c )(2) because he was not “a defendant who has been sentenced to a te rm of imprisonment based on a sentencing range subsequently lowered by the Sent encing Commission pursuant to 28 U.S.C. § 994(o).” 18 U.S.C. § 3582(c )(2). Otherwise stated, be cause Jenkins had already gotten the benefit of Amendment 782’s tw o-level reduction, his advisory range stayed the same after th e amendment—92 to 115 mont hs of imprisonment.

1 Jenkins struck a favorable deal. Had the government superseded his indictment with the actual methamphetamine under 21 U.S.C. § 841(a)(1), (b)(1)(A), and filed an information under 21 U.S.C. § 851, which it agreed not to do, Jenkins would have faced a mandatory-minimum se ntence of 240 months of imprisonment.4 The district court denied Jenkins’s § 3582(c)(2) motion on a ground we later determined improper—namely, that the “sentence was based upon a binding plea agreement [under Fed. R. Crim. P. 11(c)(1 )(C)] to a specific sentencing range of 92 to 115 months.” R. vol. 1 at 105; see also United States v. Jenkins , 668 F. App’x 852, 853 (10th Cir. 2016). DISCUSSION “We review the scope of a district c ourt’s authority in resentencing under § 3582(c)(2) de novo.” United States v. Verdin-Garcia , 824 F.3d 1218, 1220–21 (10th Cir. 2016). Federal courts gene rally lack jurisdiction to m odify a sentence after it is imposed, but they may do so when statutorily authorized. United States v. Graham , 704 F.3d 1275, 1277 ( 10th Cir. 2013). On remand, with neither the district court nor our court on appeal having yet addressed or ruled on the jurisdictional que stion, the district court declined on the merits to award relief under § 3582(c)(2). If we had jurisdiction to consider the merits, we certainly could not say this was an abuse of disc retion. But, as explained, we have no jurisdiction to r each the merits. After all, a sentencing reduction under § 3582(c)(2) must be “consiste nt with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 358 2(c)(2). One such policy statement5 prohibits a sentence reduction “that is less than the mini mum of the amended guideline range.” U.S. Sentencing Guidelines Manual § 1B1.10(b)(2)(A). 2 Because this policy binds the district c ourt, it is not authorized to reduce a defendant’s sentence below the amended guideline range. United States v. Rhodes , 549 F.3d 833, 841 (10th Cir. 2008). CONCLUSION For these reasons, we vacate the dist rict court’s order denying Jenkins’s motion for a sentence reduction under § 3582(c)(2) and remand to the district court to dismiss the motion for l ack of jurisdiction.

Entered for the Court

Gregory A. Phillips Circuit Judge

2 The policy includes an ex ception for when the government makes a motion to reflect the defendant’s subs tantial assistance. U.S. Se ntencing Guidelines Manual § 1B1.10(b)(2)(B). Here, the government hasn’t made such a motion.