*

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

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

July 19, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

 

Nos. 09-3340, 10-3040

v. (D. Kansas)

GERARDO JUAREZ-LOZANO,

Defendant - Appellant.

(D.C. No. 5:98-CR-40023-RDR-1)

ORDER AND JUDGMENT*

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

In these consolidated appeals, Gerardo Juarez-Lozano, a federal prisoner

appearing pro se, challenges the district court’s denial of two motions: a motion

to withdraw his guilty plea under Fed. R. Civ. P. 11 and a motion for reduction of

his sentence under 18 U.S.C. § 3582(c)(2). We affirm.

On September 21, 1998, Mr. Juarez-Lozano pleaded guilty in the United

States District Court for the District of Kansas to conspiring to distribute five

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kilograms or more of a mixture containing a detectable amount of cocaine. See

21 U.S.C. § 846. Mr. Juarez-Lozano moved to withdraw his plea on December 2,

1998, but the motion was denied. On February 23, 1999, the district court

sentenced him to the statutory mandatory minimum sentence of 240 months’

imprisonment. Two years later Mr. Juarez-Lozano filed a motion for relief under

28 U.S.C. § 2255 to modify his term of imprisonment. The district court denied

the motion on April 17, 2001. 

On October 8, 2009, Mr. Juarez-Lozano moved the district court to

withdraw his guilty plea under Fed. R. Crim. P. 11. He contended that the district

court “found that 5 kilograms of cocaine was to be used for sentencing, and

illegally sentenced defendant to 240 months, when the jurisdictional element of

only a ‘Detectable Amount’ was contained in the mixture or substance in

violation of Cite: United States vs. Cotton, [535 U.S. 625] (2001).” R., Vol. 1 at

115 (emphasis omitted). The district court denied the motion on several grounds,

one of which was that a motion to withdraw a plea under Rule 11 cannot be

brought by a defendant once he has been sentenced. See Fed. R. Crim. P. 11(e). 

Next, on October 30, 2009, Mr. Juarez-Lozano filed a motion under

18 U.S.C. § 3582(c)(2) to reduce his sentence. He stated as his claim: “1) The

indictment alleges 5 kilograms or more of a “Mixture or Substance” containing a

detectable amount of drugs. 2) However; ‘CRACK COCAINE’ is a finished

product ready for use, therefore; no mixture or substance can contain a finished

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product . . . . . . . . as it would not be classified as ‘CRACK’.” R., Vol. 1 at 122

(emphasis omitted). And he then concluded (based on logic unfamiliar to this

court): “Wherefore; will this Honorable Court hereby reduce defendant’s federal

sentence based on retroactive Sentencing Guideline Amendment #706 in the

interest of justice?” Id. at 123. The district court denied the motion on the

ground that § 3582(c)(2) is unavailable when, as here, the defendant was

sentenced to the minimum established by statute, because such a sentence is not

based on the United States Sentencing Guidelines. See United States v. Smartt,

129 F.3d 539, 542 (10th Cir. 1997).

We affirm the district court because it was correct in its rulings. First, Rule

11(e) bars the withdrawal of a plea after sentencing. Perhaps in some

circumstances a court could recharacterize a Rule 11 motion as one under

28 U.S.C. § 2255. But that would be pointless here because such a motion would

be barred as both untimely, see 28 U.S.C. § 2255(f), and second-or-successive,

see id. § 2255(h). As for Mr. Juarez-Lozano’s motion under § 3582(c)(2), relief

was not available for the reasons stated by the district court.

We AFFIRM the judgment of the district court. We GRANT Mr. JuarezLozano’s motion to proceed in forma pauperis.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge

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