UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

SAIGE ELISE BOWMAN, a/k/a Saige 

Alise Bowman, 

 Defendant - Appellant. 

No. 15-5086 

(D.C. No. 4:12-CR-00190-GKF-3) 

(N.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges. 

_________________________________ 

After the United States Sentencing Commission adopted a retroactive amendment 

to the Sentencing Guidelines for various drug offenses, Defendant Saige Bowman moved 

under 18 U.S.C. § 3582(c)(2) for a reduction in her sentence. The district court denied 

the motion because the amendment did not reduce Defendant’s applicable guideline 

sentencing range. Defendant appeals. We have jurisdiction under 28 U.S.C. § 1291. We 

 *

 After examining the briefs and appellate 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 

precedent, except under the doctrines of law 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 

April 21, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

agree with the analysis of the district court but vacate the order denying the motion and 

remand for entry of an order dismissing the motion for lack of jurisdiction. 

On January 18, 2013, Defendant pleaded guilty in the United States District Court 

for the Northern District of Oklahoma to one count of conspiring to distribute 

methamphetamine. See 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A)(viii). Given the 

amount and type of drug involved (nine kilograms of methamphetamine), her base 

offense level was 36. See USSG § 2D1.1(c). But because of prior felony drug 

convictions, Defendant qualified as a career offender, with a concomitant superseding 

base offense level of 37. See USSG § 4B1.1(a). The district court calculated a guideline 

sentencing range of 262–327 months’ imprisonment and sentenced Defendant to 120 

months. 

The Sentencing Commission later adopted Amendment 782, which reduces by two 

levels many of the base offense levels for drug offenses. The amendment is retroactive. 

Defendant’s § 3582(c)(2) motion sought a two-point reduction under the amendment. 

As we have previously said: 

“A federal court generally ‘may not modify a term of imprisonment 

once it has been imposed.’” Dillon v. United States, 560 U.S. 817, 819 

(2010) (quoting 18 U.S.C. § 3582(c)). But an exception lies “in the case 

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.” 18 U.S.C. § 3582(c)(2). In that event the 

sentencing court “may reduce the term of imprisonment, after 

considering the factors set forth in [18 U.S.C. § ] 3553(a).” Id. Any 

reduction under § 3582(c)(2) must, however, be “consistent with 

applicable policy statements issued by the Sentencing Commission.” 

Id. The applicable policy statement is found at USSG § 1B1.10, 

“Reduction in Term of Imprisonment as a Result of Amended Guideline 

Range (Policy Statement).” See Dillon, 560 U.S. at 827 (“§ 3582(c)(2) 
3 

requires the court to follow the Commission’s instructions in § 1B1.10 

to determine the prisoner’s eligibility for a sentence modification.”). 

United States v. Mendoza, No. 15-3151, 2016 WL 1238169, at *1 (10th Cir. Mar. 30, 

2016). According to § 1B1.10, a district court is not authorized to reduce a defendant’s 

sentence under an amendment to the sentencing guidelines if that amendment “does not 

have the effect of lowering the defendant’s applicable guideline range.” USSG 

§ 1B1.10(a)(2)(B). In some cases an amendment does not lower a defendant’s applicable 

guideline range “because of the operation of another guideline or statutory provision.” 

Id. cmt. n.1(A). That is the case here. Although Amendment 782 reduced the base 

offense level for nine kilograms of methamphetamine under USSG § 2D1.1(c) from 36 to 

34, that level is inapplicable because it is superseded by Defendant’s career-offender 

level of 37. See USSG § 4B1.1(b) (“[I]f the offense level for a career offender from the 

table in this subsection is greater than the offense level otherwise applicable, the offense 

level from the table in this subsection shall apply.”). The district court therefore lacked 

authority to reduce Defendant’s term of imprisonment. 

Defendant argues that her classification as a career offender was vitiated by 

Johnson v. United States, 135 S. Ct. 2551 (2015), which held that the residual clause in 

the definition of violent felony in the Armed Career Criminal Act (ACCA), 18 U.S.C. 

§ 924(e)(2)(B)(ii), is unconstitutionally vague. She correctly points out that the definition 

of crime of violence in the guidelines has the same language in its residual clause, USSG 

§ 4B1.2(a)(2), as is in the residual clause of the ACCA definition of violent felony. But 

we reject her argument on two grounds. First, § 3582(c)(2) authorizes a sentence 
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reduction only if a defendant’s guideline range “has subsequently been lowered by the 

Sentencing Commission.” That section may not be used to challenge the constitutionality 

of a sentence based on a decision of the United States Supreme Court. See United States 

v. Price, 438 F.3d 1005, 1007 (10th Cir. 2006) (“[E]ven if [a Supreme Court decision] 

could be read to be an implicit lowering of [the defendant’s] sentencing range, 

§ 3582(c)(2) only expressly allows a reduction where the Sentencing Commission, not 

the Supreme Court, has lowered the range.” (emphasis omitted)). Defendant’s challenge 

can now be raised only (if at all) under 28 U.S.C. § 2255. See United States v. Gay, 771 

F.3d 681, 686 (10th Cir. 2014) (“Nothing in the limited congressional grant of authority 

to modify sentences provided by § 3582(c)(2) allows [the defendant] to challenge the 

constitutionality of his sentence. He must do so either on direct appeal or in a § 2255 

petition.”). 

Second, Defendant’s challenge loses on the merits. To be a career offender one 

must have “at least two prior felony convictions of either a crime of violence or a 

controlled substance offense.” USSG § 4B1.1(a). Defendant argues that she was 

erroneously classified as a career offender because her conviction for passing a bad check 

was wrongly deemed a crime of violence. That conviction, however, was not considered 

in determining that she was a career offender. That status was based on her prior drug 

convictions. The Johnson ruling concerning the vagueness of the residual clause was 

irrelevant. 

We also reject Defendant’s argument that her prior drug offenses should be 

counted as only one offense under USSG § 4A1.2(a)(2). The guidelines state that 
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“[p]rior sentences always are counted separately if ... the defendant is arrested for the 

first offense prior to committing the second offense,” id., and Defendant committed her 

second offense more than a year after her arrest for the first offense. 

Thus, the district court properly ruled that Defendant was not entitled to relief. 

But rather than entering an order denying relief, the court should have dismissed the 

motion for lack of jurisdiction. See United States v. Graham, 704 F.3d 1275, 1279 (10th 

Cir. 2013) (if a sentence reduction is not authorized by § 3582, “dismissal rather than 

denial is the appropriate disposition.”). 

We VACATE the order denying Defendant’s motion and REMAND with 

instructions to DISMISS for lack of jurisdiction. Defendant’s motion to proceed in forma 

pauperis is DENIED. 

Entered for the Court 

Harris L Hartz 

Circuit Judge