United States v. Angulo-Lopez

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 4, 2018
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-6080
(D.C. No. 5:91-CR-00220-D-6)
JUAN CARLOS ANGULO-LOPEZ, (W.D. Okla.)
Defendant - Appellant.
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ORDER AND JUDGMENT *
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Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
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This appeal involves limitations on the district court’s jurisdiction to
reduce a sentence when the U.S. Sentencing Commission reduces the
pertinent base offense level.
* * *
*
Mr. Angulo-Lopez does not request oral argument, and it would not
materially aid our consideration of the appeal. We therefore have decided
the appeal based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But our order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
This jurisdictional issue grew out of Mr. Juan Carlos Angulo-Lopez’s
conviction on eleven counts of drug trafficking involving cocaine base. At
sentencing, the district court
 found that Mr. Angulo-Lopez’s total offense level under the
federal sentencing guidelines was 48 and
 imposed concurrent sentences of 480 months, 240 months, 60
months, and life imprisonment.
But after the sentencing, the U.S. Sentencing Commission adopted
Amendment 782, which “reduced the base offense levels assigned to
certain drug offenses by two levels.” United States v. Green, 886 F.3d
1300, 1302 (10th Cir. 2018). Given this reduction in base offense levels,
Mr. Angulo-Lopez moved for a sentence reduction under 18 U.S.C. §
3582(c)(2). 1
The district court dismissed the motion for lack of jurisdiction,
reasoning that the change in the sentencing guidelines would not have
affected Mr. Angulo-Lopez’s sentence. Mr. Angulo-Lopez appeals, and we
affirm.
To decide this appeal, we must determine whether Amendment 782
would have affected Mr. Angulo-Lopez’s guideline range. E.g., United
States v. Sharkey, 543 F.3d 1236, 1238–39 (10th Cir. 2008). On this issue,
1
Section 3582(c)(2) provides that a court may modify a sentence when
the sentence is “based on a sentencing range that has subsequently been
lowered by the Sentencing Commission.”
2
we engage in de novo review. United States v. Rhodes, 549 F.3d 833, 837
(10th Cir. 2008).
In calculating the guideline range for the initial sentence, the district
court started with a base offense level of 42 and enhanced this by six
levels, resulting in a total offense level of 48. 2 With the reduction in base
offense levels from Amendment 782, Mr. Angulo-Lopez’s base offense
level would have decreased from 42 to 38. With the same enhancements
applied at the initial sentencing, the total offense level would have dipped
from 48 to 44. But with Mr. Angulo-Lopez’s criminal history category of
II, the guideline sentence would have remained life imprisonment. In these
circumstances, Mr. Angulo-Lopez could not obtain a sentence reduction
under 18 U.S.C. § 3582(c)(2). See U.S. Sentencing Guidelines
§ 1B1.10(a)(2)(B) (“A reduction in the defendant’s term of imprisonment
is not consistent with the policy statement and therefore is not authorized
under 18 U.S.C. § 3582(c)(2) if . . . an amendment . . . does not have the
effect of lowering the defendant’s applicable guideline range.”); see also
United States v. McGee, 615 F.3d 1287, 1292 (10th Cir. 2010) (“[T]he
Sentencing Commission’s policy statements in § 1B1.10 are binding on
2
In his reply brief, Mr. Angulo-Lopez stated that the sentencing court
enhanced his base offense level from 38 to 44. Appellant’s Reply Br. at 7.
This statement is incorrect based on the sentencing record. In his opening
brief, Mr. Angulo-Lopez had acknowledged that the sentencing court
enhanced his base offense level from 42 to 48. Appellant’s Pro Se Resp.
Br. at 4, 7.
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district courts and limit their authority to grant motions for reduction of
sentences.”).
Mr. Angulo-Lopez argues that the guidelines are no longer binding
on the district court in light of United States v. Booker, 543 U.S. 220
(2005). But the Supreme Court later concluded that “proceedings under
[§ 3582(c)(2)] do not implicate the interests identified in Booker.” Dillon
v. United States, 560 U.S. 817, 828 (2010). This conclusion precludes
jurisdiction over Mr. Angulo-Lopez’s motion. See United States v. White,
765 F.3d 1240, 1250 (10th Cir. 2014).
* * *
Because Amendment 782 did not affect Mr. Angulo-Lopez’s
guideline range, the court lacked jurisdiction under § 3582(c)(2) to modify
the sentence. The district court thus properly dismissed Mr. Angulo-
Lopez’s motion for lack of jurisdiction, and we affirm the dismissal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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