Filed: Feb. 25, 2003
Latest Update: Feb. 21, 2020
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FEB 25 2003 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 02-2177 v. (D.C. No. CIV-01-538 JC/LCS & CR-01-648 JC) CESAR NUNEZ-RIOS, (D. New Mexico) Defendant - Appellant. ORDER AND JUDGMENT * Before KELLY , McKAY , and O’BRIEN , Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not mater
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FEB 25 2003 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 02-2177 v. (D.C. No. CIV-01-538 JC/LCS & CR-01-648 JC) CESAR NUNEZ-RIOS, (D. New Mexico) Defendant - Appellant. ORDER AND JUDGMENT * Before KELLY , McKAY , and O’BRIEN , Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materi..
More
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 25 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 02-2177
v. (D.C. No. CIV-01-538 JC/LCS
& CR-01-648 JC)
CESAR NUNEZ-RIOS, (D. New Mexico)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY , McKAY , and O’BRIEN , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
Defendant Cesar Nunez-Rios appeals the denial of his motion for
modification of his term of imprisonment pursuant to 18 U.S.C. § 3582(c)(2).
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
For the following reasons, we remand the case with instructions for the district
court to dismiss defendant’s motion.
Defendant pleaded guilty to reentering the United States illegally as a
deported alien previously convicted of an aggravated felony, in violation of
8 U.S.C. § 1326. Ordinarily, a defendant pleading guilty to § 1326 is sentenced
pursuant to § 2L1.2 of the United States Sentencing Guidelines. In his plea
agreement, however, defendant accepted a term of imprisonment pursuant to
Fed. R. Crim. P. 11, which allows the government and a criminal defendant
entering a guilty plea to “agree that a specific sentence is the appropriate
disposition of the case.” Fed. R. Crim P. 11(e)(1)(C). Pursuant to this rule,
defendant accepted a sentencing guideline offense level of seventeen, resulting in
a sentencing range of thirty-seven to forty-six months in prison. Defendant did
not object to the presentence report and on August 27, 2001, he was sentenced to
thirty-seven months in prison and three years of supervised release. Defendant
did not appeal.
On November 1, 2001, the Sentencing Commission adopted Amendment
632 to the Sentencing Guidelines, which amended § 2L1.2’s aggravated-felony
enhancement for unlawful reentry to provide for a graduated increase of eight to
sixteen levels according to the seriousness of the aggravated felony. See USSG
Supp. to App. C at 217 (2002); USSG § 2L1.2(b) (2002). Defendant subsequently
-2-
moved to modify his sentence under 18 U.S.C. § 3582(c)(2), arguing that
Amendment 632 retroactively lowered the authorized term of his imprisonment.
The district court denied the motion on the merits, concluding that Amendment
632 could not be retroactively applied to defendant’s sentence. We review the
district court’s determination de novo. See United States v. Smartt,
129 F.3d 539,
540 (10th Cir. 1997).
“Because [defendant’s] motion for sentence reduction is not a direct appeal
or a collateral attack under 28 U.S.C. § 2255, the viability of his motion depends
entirely on 18 U.S.C. § 3582(c).”
Id. (quotation omitted). That section provides,
in relevant part, that
[t]he court may not modify a term of imprisonment once it has been
imposed except that . . . 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
pursuant to 28 U.S.C. § 994( o), upon motion of the defendant . . . 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.
18 U.S.C. § 3582(c)(2) (emphasis added). In light of the statutory language
italicized above, this court has held that a defendant who enters into a valid plea
agreement pursuant to Fed. R. Crim. P. 11(e)(1)(C) “may not seek a reduction in
his sentence via 18 U.S.C. § 3582(c)(2).” United States v. Trujeque,
100 F.3d
869, 869 (10th Cir. 1996). In Trujeque, the district court denied the defendant’s
-3-
motion on the merits, reasoning that his sentence would be unaffected by the
retroactive application of an amendment to the Sentencing Guidelines. 1
On
appeal, we held that “[defendant’s] sentence was not based on a sentencing range
that has subsequently been lowered by the Sentencing Commission. Instead, his
sentence was based on a valid Rule 11(e)(1)(C) plea agreement.”
Id. at 871
(citation and quotation omitted). We concluded that “the district court should
have dismissed [defendant’s] motion without considering its merits,”
id. , and we
remanded the case to that court for dismissal.
In the present case, defendant’s term of imprisonment was also based on
a sentencing range that he agreed to accept under Rule 11(e)(1)(C). Therefore,
defendant’s motion to reduce his sentence was precluded by clear language of
1
As in Trujeque, retroactive application of the amendment in the present
case would not affect the length of defendant’s sentence in any event. Under the
former version of § 2L1.2, a defendant previously deported after any aggravated
felony was subject to a sixteen-level increase in the Guideline’s base offense
level. Amendment 632 “provid[es] a more graduated sentencing enhancement of
between 8 levels and 16 levels, depending on the seriousness of the prior
aggravated felony and the dangerousness of the defendant.” USSG Supp. to
App. C at 219 (Nov. 1, 2002). In the present case, defendant was initially given
the sixteen-level enhancement pursuant to § 2L1.2 for a prior drug trafficking
conviction which resulted in a four-year prison sentence. The amended version of
that section continues to apply a sixteen-level increase for a prior drug trafficking
felony resulting in a sentence exceeding thirteen months. Thus, even in the
absence of a valid Rule 11(e)(1)(C) plea agreement, we would not reach the
merits of the issues defendant raises on appeal concerning the retroactive
application of Amendment 632 to his particular sentence. See Griffin v. Davies,
929 F.2d 550, 554 (10th Cir. 1991) (“We will not undertake to decide issues that
do not affect the outcome of a dispute.”).
-4-
§ 3582(c)(2), and the district court should not have ruled on the motion’s merits.
Accordingly, we REMAND this case to the district court with instructions to
dismiss defendant’s motion. In light of this disposition, the appeal is concluded.
Entered for the Court
Monroe G. McKay
Circuit Judge
-5-