FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                             June 23, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                         No. 19-6080
                                                    (D.C. No. 5:99-CR-00057-R-1)
 LORENZO CASTENADA-ULLOA,                                   (W.D. Okla.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, LUCERO, and HARTZ, Circuit Judges.
                   _________________________________

      Defendant Lorenzo Castenada-Ulloa appeals the district court’s denial of his

motion to reduce his sentence under 18 U.S.C. § 3582(c)(2) and the First Step Act of

2018. Although Defendant now concedes he was not eligible for the sentence

reduction he requested, he asks us to vacate the district court’s denial of his motion

on the merits and remand with instructions to dismiss the motion for lack of




      *
        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
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 This order and judgment is not binding precedent,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.
jurisdiction instead. Exercising jurisdiction under 28 U.S.C. § 1291, we reach the

result Defendant seeks, but for different reasons than Defendant advances.

                                     I. Background

      In 1999, Defendant was convicted on eight federal charges related to his

participation in a drug-trafficking operation, including Count 1, conspiracy to possess

with intent to distribute and distribution of cocaine powder in violation of 21 U.S.C.

§ 846.1 The body of Count 1 alleged no specific drug quantities, but the

manner-and-means portion of that count alleged “multi-kilogram quantities of

cocaine,” R., Vol. 1 at 16, and the overt-acts portion described transactions involving

“kilogram quantities of cocaine base (crack),”

and identified a number of

transactions, most listing approximate quantities. The jury made no findings

regarding drug quantity, but in a presentence report relying on Defendant’s relevant

conduct, the Probation Office determined Defendant was accountable for 25.515

kilograms of cocaine base and 13.408 kilograms of powder cocaine. These drug

amounts resulted in a statutory range of punishment between ten years and life

imprisonment, and a range of 292 to 365 months under the United States Sentencing

Guidelines. The district court sentenced Defendant to 292 months.

      In 2019, Defendant filed a pro se motion for sentence reduction under

§ 3582(c)(2), relying on the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat.

5194, and the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. As


      1
          Defendant’s convictions on the other seven counts are not relevant to this
appeal.
                                            2
relevant to this appeal, the First Step Act permits a district court to reduce a sentence

“for a covered offense . . . as if sections 2 and 3 of the Fair Sentencing Act of 2010

. . . were in effect at the time the covered offense was committed.” First Step Act

§ 404(b). For this purpose, “the term ‘covered offense’ means a violation of a

Federal criminal statute, the statutory penalties for which were modified by section 2

or 3 of the Fair Sentencing Act of 2010 . . . that was committed before August 3,

2010.” First Step Act § 404(a). And sections 2 and 3 of the Fair Sentencing Act

modified the statutory penalties only for crack-cocaine offenses, not for

powder-cocaine offenses, by increasing the quantities of cocaine base required to

trigger mandatory minimum terms of imprisonment under 21 U.S.C. § 841(b)(1) and

by eliminating the mandatory minimum penalties for offenses involving cocaine-base

possession in 21 U.S.C. § 844(a).

      In his § 3582(c)(2) motion, Defendant summarily contended that based on

recent average sentencing reductions for cocaine offenses, he would likely receive a

sentence between 190 and 237 months if he were resentenced now, which was less

than the time he has served plus good-time credits. The district court denied the

motion, finding Defendant ineligible for the requested relief because “retroactive

application of Sections 2 and 3 of the Fair Sentencing Act would not subject

Defendant to a lower statutory range.” R., Vol. 1 at 42. The court reasoned that

under the current Sentencing Guidelines, the drug quantities Defendant was held

accountable for would still correspond with an offense level resulting in the same

statutory imprisonment range of ten years to life. The court further observed that by

                                            3
itself, the powder-cocaine quantity (13.408 kilograms) was enough to place

Defendant in the same statutory imprisonment range. The court therefore concluded

that “§ 3582(c)(2), by its terms, does not apply here.”

      Now represented by counsel, Defendant appeals.

                                     II. Discussion

      In his primary argument, Defendant states that he was not convicted of a

“covered offense” as defined by § 404(a) of the First Step Act, which, as noted,

includes only certain crack-cocaine offenses whose statutory penalties were modified

by sections 2 and 3 of the Fair Sentencing Act. He argues that relief under the First

Step Act is determined solely by the offense of conviction, not any relevant conduct

used to determine the sentence, and because his conspiracy conviction involved only

powder cocaine, it is not a “covered offense.” Based on this concession of

ineligibility, Defendant maintains that the district court should have dismissed his

§ 3582(c)(2) motion for lack of jurisdiction instead of denying it on the merits of

whether he would still be subject to the same statutory penalties under the present

Sentencing Guidelines. He seeks this relief because § 404(c) of the First Step Act

bars consideration of a second motion for relief from a sentence involving a covered

drug offense where a court has denied an initial motion on the merits, and he might

seek First Step Act relief in the future “if Congress addresses the continuing impact

of ‘relevant conduct’ in cases such as this,” Aplt. Opening Br. at 12. The

government agrees with Defendant’s argument that the district court lacked

jurisdiction because he is ineligible for relief under the First Step Act and has no

                                            4
objection to us remanding for the district court to dismiss his § 3582(c)(2) motion for

lack of jurisdiction, as Defendant requests.

       We review de novo a district court’s jurisdiction to reduce a sentence under

§ 3582(c)(2). United States v. White, 

, 1245 & n.3 (10th Cir. 2014).

We agree that the district court lacked jurisdiction, but for a different, more

fundamental reason than Defendant advances in his primary argument. See Gillmor

v. Thomas, 

, 797 (10th Cir. 2007) (explaining that “we are under a

continuing obligation to ensure that the district court had jurisdiction . . . as an initial

matter,” even where the district court does not address jurisdiction). As we explain,

the district court lacked jurisdiction under § 3582(c)(2) because Defendant based his

request for a sentence reduction on acts of Congress, not on a Guidelines sentencing

range that the United States Sentencing Commission lowered after his conviction.

       “[A] district court is authorized to modify a Defendant’s sentence only in

specified instances where Congress has expressly granted the court jurisdiction to do

so.” 

(internal quotation marks omitted). “Absent the

operation of one of a few narrowly-defined statutory exceptions, therefore, federal

courts generally lack jurisdiction to modify a term of imprisonment once it has been

imposed.”

(brackets and internal quotation marks omitted). “One

such exception” is the provision Defendant here relied on, § 3582(c)(2), which

“permit[s] defendants whose Guidelines sentencing range has been lowered by

retroactive amendment to move for a sentence reduction if the terms of the statute are



                                             5
met.”

(internal quotation marks omitted). Specifically, § 3582(c)(2)

provides:

      [I]n 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 pursuant to 28 U.S.C. 994(o),
      . . . the court may reduce the term of imprisonment, after considering the
      factors set forth in section 3553(a) to the extent that they are applicable, if
      such a reduction is consistent with applicable policy statements issued by
      the Sentencing Commission.
§ 3582(c)(2) (emphasis added).2 Thus, “[i]f an amendment applies retroactively,

[§ 3582(c)(2)] authorizes district courts to reduce the sentences of prisoners who

were sentenced based on a Guidelines range that would have been lower had the

amendment been in place when they were sentenced.” Hughes v. United States,

, 1773 (2018).

      In his § 3582(c)(2) motion, Defendant did not base his request for a sentence

reduction on a sentencing range that the Sentencing Commission later lowered or on

a retroactively applicable Guidelines amendment. He instead relied on two

congressional acts—the First Step Act and the Fair Sentencing Act. And although

section 8 of the Fair Sentencing Act provided emergency authorization for the

Sentencing Commission to make conforming amendments to the Guidelines, the First

Step Act permits a court to impose a reduced sentence only where sections 2 and 3 of

the Fair Sentencing Act modified the statutory penalties for a covered offense. First




      2
        Section 994(o) requires the Sentencing Commission to review and revise the
Sentencing Guidelines periodically based on comments and data brought to its
attention.
                                             6
Step Act § 404(a)-(b). Because § 3582(c)(2) authorizes sentence reductions only

where a term of imprisonment was “based on a sentencing range that has

subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C.

994(o),” it does not authorize the district court to grant the relief Defendant

requested—a reduction to a term of imprisonment based on statutory modifications to

statutory penalties. Accordingly, the district court lacked jurisdiction under

§ 3582(c)(2). See United States v. Graham, 

, 1279 (10th Cir. 2013)

(stating that “dismissal [for lack of jurisdiction] rather than denial is the appropriate

disposition” when sentence reduction is not authorized by § 3582(c)(2)), abrogated

on other grounds by Hughes, 

; see also 

(same, citing Graham).3

                                    III. Conclusion

       We remand this matter to the district court with instructions to vacate the order

denying Defendant’s § 3582(c)(2) motion and to enter a new order dismissing that




       3
        As part of an alternative argument we need not reach, Defendant concedes he
invoked § 3582(c)(2) “incorrectly” and posits that § 3582(c)(1)(B) is the proper
procedural mechanism for requesting relief under the First Step Act and the Fair
Sentencing Act. Aplt. Opening Br. at 14. In relevant part, § 3582(c)(1)(B)
authorizes a district court to “modify an imposed term of imprisonment to the extent
otherwise expressly permitted by statute.” § 3582(c)(1)(B). Although the Fourth
Circuit has recently concluded that “First Step Act motions [involving the Fair
Sentencing Act] fall under § 3582(c)(1)(B),” United States v. Chambers, 

, 671 (4th Cir. 2020), we need not and do not address that question because
Defendant does not ask us to determine that the district court had jurisdiction under
§ 3582(c)(1)(B).
                                            7
motion without prejudice for lack of jurisdiction.4


                                           Entered for the Court


                                           Mary Beck Briscoe
                                           Circuit Judge




      4
         Although we are governed by precedent, we again “note that there appears to
be both an intra-circuit and inter-circuit split on the question of whether statutory
ineligibility for § 3582 relief is jurisdictional,” United States v. Sandoval-Flores,
665 F. App’x 655, 656 n.1 (10th Cir. 2016) (collecting cases and stating the “belie[f]
that the nonjurisdictional approach “is the better approach”); cf. United States v.
Spaulding, 

, 1122-24 (10th Cir. 2015) (majority opinion concluding, in
different context, that § 3582(c) is jurisdictional); cf.

(Gorsuch, J.,
dissenting) (expressing the contrary view that § 3582(c) is a nonjurisdictional
claim-processing rule).
                                           8