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

                             FOR THE TENTH CIRCUIT                         March 25, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 15-5118
                                                  (D.C. No. 4:10-CR-00129-GKF-1)
DEMONE RASHEE BELL, a/k/a “D,”                               (N.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, McKAY, and MORITZ, Circuit Judges.
                  _________________________________

      Appearing pro se, Demone Rashee Bell appeals the district court’s denial of

his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2).1 Because Bell is

ineligible for a sentence reduction, we affirm.

      Bell was convicted in 2010 of various counts arising out of a conspiracy to

manufacture and distribute methamphetamine. A jury found the conspiracy involved


      *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
       1
         Because Bell appears pro se, we liberally construe his filings. Gallagher v.
Shelton, 

, 1067 (10th Cir. 2009). But it’s not our role to act as his
advocate. 

of methamphetamine, which resulted in a base offense level of 34. After

applying several enhancements, the district court concluded Bell had a total offense

level of 42 and a criminal history category VI, producing a Guidelines range of 360

months to life in prison. But the court granted in part Bell’s motion for a downward

variance to a non-Guidelines sentence, varying downward seven levels to a total

offense level of 35 and a Guidelines range of 292 to 365 months. The court sentenced

Bell to 300 months in prison.

      The Sentencing Commission subsequently issued Amendment 782, which

lowered by two levels most of the base offense levels provided in the Guidelines’

Drug Quantity Table. See U.S.S.G. app. C, amend. 782. Citing Amendment 782, Bell

filed a motion for a sentence reduction under § 3582(c)(2), which authorizes a district

court to reduce a defendant’s sentence if it was “based on a sentencing range that has

subsequently been lowered by the Sentencing Commission.” Bell argued he was

eligible for a reduced sentence because “Amendment 782 reduced the Guidelines’

range applicable in this case.” R. at 58.

      The district court disagreed. It explained that although Amendment 782

lowered Bell’s total offense level from 42 to 40, the resulting Guidelines range

remained 360 months to life. Noting that it was “not permitted to impose a sentence

that is less than the range produced by the retroactive amendment,” the district court

concluded Bell was ineligible for a sentence reduction because his original 300-

month sentence is below the minimum of the applicable post-Amendment Guidelines

range. 

(citing U.S.S.G. § 1B1.10(b)(2)(A)).

                                            2
       Bell appeals,2 insisting Amendment 782 reduced his applicable Guidelines

range. He explains that because his total offense level is now 40, “leaving all other

application decisions made at [the time of his sentencing] intact, specifically,

removing seven levels of offense characteristics as a downward variance – he would

have received a sentence of 235 months (Level 33, Category VI).” Aplt. Br. 5.

       But Bell is mistaken that applying the seven-level variance he received at

sentencing would reduce the applicable Guidelines range. For purposes of a motion

under § 3582(c)(2), the applicable Guidelines range is the “range that corresponds to

the offense level and criminal history category determined pursuant to 1B1.1(a),

which is determined before consideration of . . . any variance.” U.S.S.G. § 1B1.10

cmt. n.1(A) (emphasis added); see also United States v. Corber, 

, 768

(10th Cir. 2010) (explaining that “the ‘applicable guideline range’ and the range upon

which a sentence is ‘based’ is, as a matter of law, the range produced under the

guidelines’ sentencing table after a correct determination of the defendant’s total

offense level and criminal history category but prior to any discretionary variances”

(emphasis added)).

       Based on the district court’s original pre-variance determination of Bell’s total

offense level (i.e., 42) and his criminal history category (i.e., VI), Bell’s applicable

Guidelines range at sentencing was 360 months to life. Supp. R., vol. II, at 29l; see

       2
        Bell filed his notice of appeal more than fourteen days after the district court
denied his motion. Because the government doesn’t challenge his appeal as untimely,
we exercise our discretion to hear the appeal. See United States v. Garduno, 

, 1291 (10th Cir. 2007) (explaining timeliness under Fed. R. App. P. 4(b)(1)(A)
“may be forfeited if not properly raised by the government”).
                                            3
U.S.S.G. ch. 5, pt. A. Bell is correct that Amendment 782 reduces his total offense

level from 42 to 40. See U.S.S.G. § 2D1.1(c)(4). But when that new offense level is

coupled with Bell’s criminal history category of VI, his applicable Guidelines range

for purposes of § 3582(c)(2) remains 360 months to life. See U.S.S.G. ch. 5, pt. A;

(explaining applicable Guidelines range is range calculated

before variance). This is fatal to Bell’s motion, because a court isn’t authorized to

reduce a defendant’s sentence under § 3582(c)(2) if the applicable amendment “does

not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G.

§ 1B1.10(a)(2)(B).3

      Accordingly, we affirm the district court’s denial of Bell’s § 3582(c)(2)

motion. We also deny Bell’s motion to proceed in forma pauperis.


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




      3
         Moreover, Bell’s original 300-month sentence is below the minimum of the
applicable Guidelines range produced by Amendment 782. The district court
therefore correctly concluded it was prohibited from reducing his sentence any
further. See U.S.S.G. § 1B1.10(b)(2)(A) (providing that, absent a narrow exception
not applicable here, a court “shall not reduce the defendant’s term of imprisonment
under” § 3582(c)(2) “to a term that is less than the minimum of the amended
guideline range”).
                                           4