UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. CALVIN DEWAYNE GREEN, JR., Defendant - Appellant. No. 15-6156 (D.C. No. 5:12- CR-00090-R-5) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , LUCERO , and McHUGH , Circuit Judges.

________________ _________________ Defendant-Appellant Calvin Dewayne Green , Jr., appeals the district court’s denial of his motion for a sentence reducti on under 18 U.S.C. § 3582(c)(2). He argues that his sentence should be reduced because of Amendment 782 to the United States Sentencing Guidelines, which lowe red the offense leve ls for certain drug offenses, even though he received a sent ence below the amended guideline range. Exercising jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, th is 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 1, 2016 Elisabeth A. Shumaker Clerk of Court2 In 2012 Mr. Green pleaded guilty to two offenses for act s related to his participation in a drug conspiracy that occurred from April 2008 to April 2011. He was sentenced under the 2011 edition of the Sentencing Guidelines, which yielded a guideline range of 108 to 135 months. The district court granted a downward variance and imposed an 84-m onth term of imprisonment. In November 2014 Mr. Green, proceed ing pro se, moved for a sentence reduction based on Amendment 782, which became effect ive that month. The government responded by arguing that Mr. Green was ineligib le for a sentence reduction under § 3582(c)(2) because he received a sentence th at was below the amended guideline range of 87 to 108 months and did not fall within the exception for defendants who provided substan tial assistance to authorities. See U.S.S.G. § 1B1.10(b)(2). The district court denied the motion. Through appointed counsel, Mr. Green th en filed a motion to reconsider. He argued that the court should consider a proportional reduction of his sentence (which was twenty-two percent below the low end of the guideline range that applied when he was sentenced) based on the amended guideline range, which would result in a 68-month sentence. He conceded that he did not fall within the “substantial assistance” exception but argued that applyi ng the exception to him violates the Ex Post Facto Clause. U.S. Cons t., art. I, § 9, cl. 3. Th e court denied the motion, and this appeal followed. Mr. Green’s ex post facto argument, both in the district court and on appeal, is premised on Amendments 759 and 782 to the Sentencing Guidelines, which were3 implemented after the acts supporting his convictions. Amendment 759, which took effect in November 2011, altered § 1B 1.10 by limiting who was eligible for a sentence reduction based on subsequent ame ndments to the Sentencing Guidelines. Before the amendment, a defe ndant could be eligible for a sentence reduction even if he or she received an origin al sentence that was below th e amended guideline range: If the original term of imprisonment imposed was le ss than the term of imprisonment provided by the guide line range applicable to the defendant at the time of sentenci ng, a reduction comparably less than the amended guideline range determin ed under subdivision (1) of this subsection may be appropr iate. However, if the original term of imprisonment constituted a non-gui deline sentence . . . a further reduction generally woul d not be appropriate. U.S.S.G. § 1B1.10(b)(2)(B) (Nov. 2010). This exception applied only to “covered amendments” then listed in the Sentencing Guidelines. Id. § 1B1.10(c). Of course that list did not include Amendment 782 as it did not take effect until November 2014. As amended by Amendment 759, § 1B1.10 allows reduced sentences for a defendant who received an original sent ence that was below the amended guideline
range only if he or she provide d substantial assist ance to authorities: If the term of imprisonment imposed was less than the term of imprisonment provided by the guide line range applicable to the defendant at the time of sentencing pursuant to a government motion to reflect the defendant’s substantial as sistance to authorities, a reduction comparably less than the amende d guideline range determined under subdivision (1) of this subs ection may be appropriate.4 U.S.S.G. § 1B1.10(b)(2)(B). This exception also applies only to “covered amendments” listed in th e Sentencing Guidelines. Id. § 1B1.10(d). That list includes Amendment 782. Amendment 782 took effect in Nove mber 2014, reducing by two the base offense level for certain drug offenses, incl uding Mr. Green’s. Mr. Green argues that applying Amendment 759 to find he is in eligible for a sent ence reduction under Amendment 782 violates the Ex Post Facto Clause. We disagree. We review de novo the scope of a dist rict court’s authority under § 3582(c)(2) to resentence a defendant. United States v. Gay , 771 F.3d 681, 685 (10th Cir. 2014); see also United States v. Sharkey , 543 F.3d 1236, 1238 (10t h Cir. 2008) (“We review de novo the district court’s interpretation of a statute or the sentencing guidelines.” (internal quotation marks omitte d)). We also review de novo whether application of a sentencing guideline violates the Ex Post Facto Clause. United States v. Weiss , 630 F.3d 1263, 1275 (10th Cir. 2010). An ex post facto violation occurs wh en “a given change in law presents a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Peugh v. United States , 133 S. Ct. 2072, 2082 (2013); see also Weiss , 630 F.3d at 1276 (“At sentencing, an ex post facto violation occurs when the district court applies a guideline to an event o ccurring before its enactment, and the application of that guideline disadvantag es the defendant by . . . increasing the punishment for the crime.” (internal quot ation marks omitted) ). We conclude Amendments 759 and 782, as applied to Mr. Green’s sentence, do not violate the5 Ex Post Facto Clause because they do not – either individually or in combination – retroactively increase the punishment for his offenses. Moreover, applying the pre-Amendmen t 759 version of § 1B1.10 would not help Mr. Green because it never enco mpassed Amendment 782 for the obvious reason that Amendment 782 did not yet exist. When § 1B1.10 was amended in 2011, all later reductions in the Sent encing Guidelines were subject to that version, not to any previous one. See Weiss , 630 F.3d at 1275 (“Unde r the one-book rule, the Guidelines Manual in effect on a particular date shall be applie d in its entirety.” (internal brackets and qu otation marks omitted)); see also U.S.S.G. § 1B1.11(b)(2) (“The court shall not apply . . . one guideline section from one edition of the Guidelines Manual and another guideline section from a different edition of the Guidelines Manual.”).
In United States v. Kurtz , --- F.3d ---, 2016 WL 1212 066 (10th Cir. Mar. 29, 2016), published after briefing was completed in this case , this court rejected the legal theories advanced by Mr. Green rega rding these amendments . Other circuits have also concluded that applying Amendmen t 759 as the district court did is not an ex post facto violation. See, e.g. , United States v. Waters , 771 F.3d 679, 681 (9th Cir. 2014); United States v. Diggs , 768 F.3d 643, 645-46 (7th Cir. 2014); United States v. Colon , 707 F.3d 1255, 1258- 59 (11th Cir. 2013). The district court did not err in its in terpretation of the Guidelines, including Amendments 759 and 782. Nor did the di strict court err in denying Mr. Green’s motion to reduce his sentence. And because Mr. Green is not eligible for a sentence6 reduction, we need not address his argumen t that the district court abused its discretion by deciding, in the alternative, that a reducti on was not warranted based on the factors set forth in 18 U.S.C. § 3553. The district court’s order is affirmed.

Entered for the Court
Mary Beck Briscoe Circuit Judge