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 Commi ssion adopted a retroactive amendment to the Sentencing Guidelines for various dr ug offenses, Defendant Saige Bowman moved under 18 U.S.C. § 3582(c)(2) fo r a reduction in her sentence. The district court denied the motion because the ame ndment did not reduce Defend ant’s applicable guideline sentencing range. Defendant appeals. We ha ve jurisdiction under 28 U.S.C. § 1291. We

* 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### April 21, 2016
Elisabeth A. Shumaker Clerk of Court2 agree with the analysis of the district cour t 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, Defenda nt 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 distri ct court calculated a guideline sentencing range of 262–327 months’ imprisonment and sentenced Defendant to 120 months. The Sentencing Commission later adopted Am endment 782, which reduces by two levels many of the base offense levels for dr ug offenses. The amendm ent 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 no t 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 sentence d to a term of imprisonment based on a sentencing range that has s ubsequently 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 statemen t 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 Co mmission’s instructions in § 1B1.10 to determine the prisoner’s eligibil ity 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 cour t is not authorized to reduce a defendant’s sentence under an amendment to the sentenci ng 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 cas es an amendment does not lowe r a defendant’s applicable guideline range “because of the operation of a nother 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 metham phetamine under USSG § 2D1.1(c) from 36 to 34, that level is inapplicable because it is superseded by Defe ndant’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 a pply.”). The district court therefore lacked authority to reduce Defendant’s term of imprisonment. Defendant argues that her classificati on as a career offender was vitiated by Johnson v. United States , 135 S. Ct. 2551 (2015), which he ld 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 la nguage 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 sentence4 reduction only if a defendant’s guideline rang e “has subsequently been lowered by the Sentencing Commission.” That s ection 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 reduc tion 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 convicti ons 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. Th at 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 th at her prior drug offenses should be counted as only one offense under USSG § 4A1.2(a)(2). The guidelines state that5 “[p]rior sentences always are counted separate ly if ... the defendant is arrested for the first offense prior to comm itting 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 aut horized by § 3582, “dis missal rather than denial is the appropriate disposition.”). We VACATE the order denying Defe ndant’s motion and REMAND with instructions to DISMISS for lack of juri sdiction. Defendant’s motion to proceed in forma pauperis is DENIED.

Entered for the Court

Harris L Hartz Circuit Judge