United States v. Olvera-Garcia ( 2003 )


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  •                                                            F I L E D
                                                         United States Court of Appeals
                                                                 Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                MAR 5 2003
                            FOR THE TENTH CIRCUIT
                                                           PATRICK FISHER
                                                                      Clerk
    
    
    UNITED STATES OF AMERICA,
    
               Plaintiff - Appellee,
    
    v.                                             No. 02-2066
                                            (D.C. Nos. CR-01-415-LH
    FERNANDO OLVERA-GARCIA,                  & CIV-02-130-LH/DJS)
    also known as Alberto Gonzalez,             (D. New Mexico)
    
               Defendant - Appellant.
    
    
    UNITED STATES OF AMERICA,
    
               Plaintiff - Appellee,
                                                  No. 02-2079
    v.                                      (D.C. Nos. CR-01-665-JC
                                             & CIV-02-165-JC/LFG)
    FERNANDO TORRES-MARQUEZ,                    (D. New Mexico)
    
               Defendant - Appellant.
    
    
    
    UNITED STATES OF AMERICA,
    
               Plaintiff - Appellee,               No. 02-2114
                                            (D.C. Nos. CR-01-421-LH
    v.                                      & CIV-02-256-LH/KBM)
                                                (D. New Mexico)
    HUMBERTO URIBE-RAMIREZ,
    
               Defendant - Appellant.
                               ORDER AND JUDGMENT            *
    
    
    
    
    Before SEYMOUR , EBEL , 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
    
    these appeals.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). These cases
    
    are therefore ordered submitted without oral argument.
    
           In these three cases, defendants appeal from the denial of their motions to
    
    modify their criminal sentences under 18 U.S.C. § 3582(c)(2) based on a
    
    subsequent change in the sentencing guidelines. The district court denied the
    
    motions on the merits. Because each appellant was sentenced in accordance with
    
    a plea agreement specifying an offense level, the district court should have
    
    dismissed without reaching the merits.
    
           Each of these defendants 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(a)(1), (2), and (b)(2). At the time they were
    
    sentenced, USSG § 2L1.2(b)(1)(A) called for a sixteen-level increase for a
    
    
    *
          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.
    
                                             -2-
    defendant previously convicted of an aggravated felony. Effective November 1,
    
    2001, however, the Sentencing Commission promulgated Guidelines
    
    Amendment 632, which amended § 2L1.2(b)’s aggravated-felony enhancement to
    
    provide for an increase of eight to sixteen levels according to the seriousness of
    
    the earlier aggravated felony.   See USSG Supp. to App. C at 224-25 (Nov. 1,
    
    2001); USSG § 2L1.2(b) (Nov. 1, 2001). In response, each of these defendants
    
    filed a pro se motion to modify his sentence under 18 U.S.C. § 3582(c)(2),
    
    arguing that Amendment 632 had lowered the authorized term of imprisonment.
    
    The district court denied each motion on the merits, and each defendant appealed.
    
    We review the district court’s determinations de novo.   See United States v.
    
    Smartt , 
    129 F.3d 539
    , 540 (10th Cir. 1997).
    
    
                    No. 02-2066, United States v. Fernando Olvera-Garcia
    
           The presentence report calculated defendant’s criminal history category at
    
    IV and his offense level at twenty-one, which included the sixteen-level increase
    
    under § 2L1.2(b). Defendant entered into a plea agreement pursuant to
    
    Fed. R. Crim. P. 11(e)(1)(C), however, under which he agreed to be sentenced at
    
    an offense level of seventeen. The sentencing court accepted the plea agreement
    
    and sentenced defendant within the stipulated range.
    
           When a defendant enters into a valid plea agreement pursuant to
    
    Fed. R. Crim. P. 11(e)(1)(C), “he may not seek a reduction in his sentence via
    
                                               -3-
    18 U.S.C. § 3582(c)(2).   United States v. Trujeque , 
    100 F.3d 869
    , 869 (10th Cir.
    
    1996). Defendant has neither argued nor demonstrated that his Rule 11(e)(1)(C)
    
    plea agreement is invalid. As a result, the district court should have dismissed
    
    defendant’s § 3582(c)(2) motion without addressing the merits of his argument
    
    regarding Amendment 632.
    
    
                  No. 02-2079, United States v. Fernando Torres-Marquez
    
          The presentence report calculated defendant’s criminal history category at
    
    III and his offense level at twenty-one, which included the sixteen-level increase
    
    under § 2L1.2(b). Defendant entered into a Rule 11(e)(1)(C) plea agreement,
    
    however, under which he agreed to be sentenced at an offense level of seventeen.
    
    The sentencing court accepted the plea agreement and sentenced defendant within
    
    the stipulated range.
    
          As in No. 02-2066, this defendant has neither argued nor demonstrated that
    
    his Rule 11(e)(1)(C) plea agreement is invalid. Therefore, the district court
    
    should have dismissed defendant’s § 3582(c)(2) motion without addressing its
    
    merits. See Trujeque , 100 F.3d at 869.
    
    
                  No. 02-2114, United States v. Humberto Uribe-Ramirez
    
          The presentence report calculated defendant’s criminal history category at
    
    IV and his offense level at twenty-one, which included the sixteen-level increase
    
    
                                              -4-
    under § 2L1.2(b). Defendant entered into a Rule 11(e)(1)(C) plea agreement,
    
    however, under which he agreed to be sentenced at an offense level of seventeen.
    
    The sentencing court accepted the plea agreement and sentenced defendant within
    
    the stipulated range.
    
           As in Nos. 02-2066 and 02-2079, this defendant has neither argued nor
    
    demonstrated that his Rule 11(e)(1)(C) plea agreement is invalid. As a result, the
    
    district court should have dismissed defendant’s § 3582(c)(2) motion without
    
    addressing its merits.   See Trujeque , 100 F.3d at 869.
    
    
                                          Conclusion
    
           In each of these cases, we VACATE the district court’s merits decision and
    
    REMAND with instructions to dismiss defendant’s motion. The mandate shall
    
    issue forthwith.
    
    
    
                                                          Entered for the Court
    
    
    
                                                          Terrence L. O’Brien
                                                          Circuit Judge
    
    
    
    
                                               -5-
    

Document Info

DocketNumber: 02-2066

Filed Date: 3/5/2003

Precedential Status: Non-Precedential

Modified Date: 12/21/2014