United States v. Nunez-Rios ( 2003 )


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  •                                                                            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          This order and judgment is not binding precedent, except under the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
    
    
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    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
    
    
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    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
    
    
    
    
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