United States v. Ramirez , 698 F. App'x 943 ( 2017 )


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  •                                                                                       FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                           Tenth Circuit
    TENTH CIRCUIT                               June 21, 2017
    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,                               No. 16-6335
    v.                                                   (D.C. No. 5:13-CR-00138-F-6)
    ERLINDA RAMIREZ,                                           (W.D. Oklahoma)
    Defendant - Appellant.
    ORDER AND JUDGMENT *
    Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
    Defendant-Appellant Erlinda Ramirez, a federal prisoner proceeding pro se,1 filed
    in the district court a motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2)
    and Amendment 794. The district court dismissed the motion for lack of jurisdiction, and
    Ms. Ramirez timely appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm
    and also deny Ms. Ramirez’s request to proceed on appeal in forma pauperis.
    *
    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 This order and judgment is not binding precedent,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 consistent with Federal Rule Appellate
    Procedure 32.1 and 10th Circuit Rule 32.1.
    1
    We construe Ms. Ramirez’s pro se filings liberally. See Smith v. Veterans
    Admin., 
    636 F.3d 1306
    , 1310 (10th Cir. 2011).
    I.   BACKGROUND
    On August 21, 2013, a federal grand jury returned a superseding indictment
    charging Ms. Ramirez with conspiring to distribute, and possess with intent to distribute,
    controlled substances, in violation of 21 U.S.C. § 846 (Count 1); conspiring to launder
    money, in violation of 18 U.S.C. § 1956(h) (Count 2); possessing methamphetamine with
    the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Count 32); and aiding and
    abetting money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2 (Counts
    36–42). Ms. Ramirez pled guilty to Counts 1, 2, and 36–42, and the district court
    dismissed Count 32.
    In its revised presentence investigation report (PSR), the United States Probation
    Office recommended a guideline range of 262 to 327 months’ imprisonment, based on a
    total offense level of 34 and a criminal history category of VI. Ms. Ramirez raised no
    objections to the PSR. The district court held a sentencing hearing on September 3, 2014,
    during which the court adopted the PSR and sentenced Ms. Ramirez to 240 months’
    imprisonment on each count to run concurrently. Ms. Ramirez appealed, and we granted
    defense counsel’s motion to withdraw and dismissed the appeal after finding Ms.
    Ramirez raised only frivolous issues. See United States v. Ramirez, 613 F. App’x 711,
    712–14, 712 n.1 (10th Cir. 2015) (unpublished). On July 15, 2015, Ms. Ramirez moved
    for a sentence reduction based on Amendment 782. The district court denied the motion,
    and Ms. Ramirez did not appeal.
    Then, on November 1, 2015, the United States Sentencing Commission issued
    Amendment 794, which amended the commentary to United States Sentencing
    2
    Guidelines § 3B1.2. The Sentencing Commission issued the amendment because it found
    that minor role reductions under U.S.S.G. § 3B1.2 were being “applied inconsistently and
    more sparingly than the Commission intended.” United States v. Quintero-Leyva, 
    823 F.3d 519
    , 522 (9th Cir. 2016) (quoting U.S.S.G. App. C. Amend. 794.)
    In response, Ms. Ramirez moved under 18 U.S.C. § 3582(c)(2) for a sentence
    reduction based on Amendment 794. Ms. Ramirez maintained that Amendment 794 is a
    clarifying amendment to U.S.S.G. § 3B1.2 that retroactively entitled her to a minor role
    adjustment to her sentence. The district court disagreed and dismissed her motion for lack
    of jurisdiction. The court explained that the Sentencing Commission has not made
    Amendment 794 retroactive by listing it in U.S.S.G. § 1B1.10(d). And even if
    Amendment 794 should be retroactive because it is a clarifying amendment, rather than a
    substantive one, such an argument is not properly brought in a § 3582(c)(2) motion. Ms.
    Ramirez timely appealed.
    II.   STANDARD OF REVIEW
    “We review de novo a district court’s interpretation of the sentencing guidelines.”
    United States v. Torres-Aquino, 
    334 F.3d 939
    , 940 (10th Cir. 2003). We also review de
    novo a district court’s conclusion that it lacks jurisdiction, using the same legal standard
    employed by the district court. See United States v. Gay, 
    771 F.3d 681
    , 685 (10th Cir.
    2014) (“We review de novo the scope of a district court’s authority to resentence a
    defendant in a § 3582(c)(2) proceeding.”).
    3
    III.   ANALYSIS
    Congress has granted jurisdiction to federal courts to reduce a previously imposed
    sentence if the Sentencing Commission has lowered the applicable sentencing range and
    “such a reduction is consistent with applicable policy statements issued by the Sentencing
    Commission.” 18 U.S.C. § 3582(c)(2); see also United States v. Gay, 
    771 F.3d 681
    , 686
    (10th Cir. 2014) (“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.”). The applicable policy statement states that a reduction in the term of a defendant’s
    sentence is “not consistent with this policy statement” and therefore not authorized under
    § 3582(c)(2) if “[n]one of the amendments listed in subsection (d) is applicable to the
    defendant . . . .” U.S.S.G. § 1B1.10(a)(2); see Dillon v. United States, 
    560 U.S. 817
    , 821
    (2010) (stating that U.S.S.G. § 1B1.10 is the applicable policy statement). Amendment
    794 is not among the covered amendments listed in § 1B1.10(d) and thus has not been
    made retroactive by the Sentencing Commission. See 
    Dillon, 560 U.S. at 826
    (noting that
    Congress has charged the Commission “with determining whether and to what extent an
    amendment will be retroactive” (citing 28 U.S.C. § 994(u))). Accordingly, Ms. Ramirez
    is not entitled to relief under § 1B1.10. See United States v. Torres-Aquino, 
    334 F.3d 939
    ,
    940–41 (10th Cir. 2003) (holding that defendant was not entitled to a reduced sentence
    because the amendment on which he relied was not listed as a retroactive amendment in
    § 1B1.10).
    Nonetheless, Ms. Ramirez insists that the district court could apply Amendment
    794 retroactively because it is a clarifying amendment. But
    4
    whether an amendment to the guidelines is clarifying or substantive goes to
    whether a defendant was correctly sentenced under the guidelines in the
    first place, not to whether a correct sentence has subsequently been reduced
    by an amendment to the guidelines and can be modified in a proceeding
    under § 3582(c)(2).
    
    Torres-Aquino, 334 F.3d at 941
    . And “[a]n argument that a sentence was incorrectly
    imposed should be raised on direct appeal or in a motion to vacate, set aside, or correct
    sentence pursuant to 28 U.S.C. § 2255.” 
    Id. Because Ms.
    Ramirez proceeded exclusively
    under § 3582(c)(2), we have no occasion to consider whether Amendment 794 applies
    retroactively as a clarifying amendment. See 
    id. Ms. Ramirez
    is ineligible for a sentence
    reduction under 18 U.S.C. § 3582(c)(2) because Amendment 794 is not among the
    covered amendments listed in U.S.S.G. § 1B1.10(d). The district court correctly
    dismissed for lack of jurisdiction.
    Lastly, Ms. Ramirez moves to proceed on appeal in forma pauperis. Prisoners
    seeking to proceed in forma pauperis must demonstrate “a financial inability to pay the
    required fees and the existence of a reasoned, nonfrivolous argument on the law and facts
    in support of the issues raised on appeal.” McIntosh v. U.S. Parole Comm’n, 
    115 F.3d 809
    , 812 (10th Cir. 1997) (internal quotation marks omitted). Ms. Ramirez’s motion is
    denied because she is unable to show that her arguments on appeal are nonfrivolous.
    5
    IV.   CONCLUSION
    The order of the Western District of Oklahoma is AFFIRMED, and Ms. Ramirez’s
    motion to proceed in forma pauperis is DENIED.
    Entered for the Court
    Carolyn B. McHugh
    Circuit Judge
    6
    

Document Info

Docket Number: 16-6335

Citation Numbers: 698 F. App'x 943

Filed Date: 6/21/2017

Precedential Status: Non-Precedential

Modified Date: 1/13/2023