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

FOR THE TENTH CIRCUIT December 10, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 19-3084 v. (D.C. No. 2:05-CR-20018-CM-1) (D. Kansas) CARLOS JACKSON,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BRISCOE, McHUGH, and MORITZ, Circuit Judges. _________________________________

Carlos Jackson, a prisoner in federal custody proceeding pro se,1 appeals from

the district court’s dismissal of his motion for sentence reduction under 18 U.S.C.

§ 3582(c)(2). We affirm.

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. 1 Because Mr. Jackson is proceeding pro se, “we liberally construe his filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). I. BACKGROUND In March 2013, Mr. Jackson pleaded guilty to one count of conspiracy to

manufacture, to possess with the intent to distribute, and to distribute 280 grams or

more of a mixture containing cocaine base in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A), and 846 (“Count One”), and one count of unlawful use of a firearm

during a drug trafficking crime in violation of 21 U.S.C. § 924(c) (“Count Two”).

Mr. Jackson’s Presentence Investigation Report (“PSR”) calculated a total

offense level of 31 for Count One, resulting in a Guidelines range of 135–168

months’ imprisonment for this charge. The PSR also noted that Count One triggered

a statutory mandatory minimum of 120 months’ imprisonment. The district court

sentenced Mr. Jackson to consecutive terms of 120 months’ imprisonment for Count

One and 60 months’ imprisonment for Count Two—the statutory mandatory

minimum sentences for both crimes.

In November 2014, the Sentencing Commission enacted Amendment 782, a

retroactive amendment to the Sentencing Guidelines that “reduced the base offense

levels assigned to drug quantities in U.S.S.G. § 2D1.1, effectively lowering the

Guidelines minimum sentences for drug offenses.” United States v. Kurtz, 819 F.3d 1230, 1234 (10th Cir. 2016) (quotation marks omitted). As the Government concedes,

Amendment 782 lowers Mr. Jackson’s base offense level from 30 to 28, thus

decreasing his Guidelines range for Count One from 135–168 months to 108–135

months.

2 On August 27, 2018, Mr. Jackson filed a motion with the district court under

18 U.S.C. § 3582(c)(2) seeking a reduction in his sentence for Count One. The

district court denied Mr. Jackson’s motion for sentence reduction, reasoning that

“although Amendment 782 has lowered the guidelines range for [Mr. Jackson’s]

sentence, [he] is not authorized for a reduction because the court cannot reduce his

sentence below the mandatory minimum sentence of 120 months.” Mr. Jackson

timely appealed.

II. DISCUSSION

A. Standard of Review

“We review the scope of a district court’s authority in sentence reduction

under 18 U.S.C. § 3582(c)(2) de novo.” United States v. Chavez-Meza, 854 F.3d 655, 657 (10th Cir. 2017).

B. Analysis “Absent the operation of one of a few narrowly-defined statutory

exceptions, . . . [f]ederal courts generally lack jurisdiction to modify a term of

imprisonment once it has been imposed.” United States v. White, 765 F.3d 1240,

1244–45 (10th Cir. 2014) (alteration in original) (internal quotation marks omitted).

The relevant statutory exception here, 18 U.S.C. § 3582(c)(2), “permit[s] defendants

whose Guidelines sentencing range has been lowered by retroactive amendment to

move for a sentence reduction if the terms of the statute are met.” Freeman v. United

States, 564 U.S. 522, 526 (2011). The statute provides:

3 [I]n 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 . . . 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 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). One such policy statement—the commentary accompanying

U.S.S.G. § 1B1.10—limits the ability to obtain a reduced sentence based on a

retroactively lowered sentencing range:

[A] reduction in [a] defendant’s term of imprisonment is not authorized under 18 U.S.C. § 3582(c)(2) . . . if . . . an amendment listed in subsection (d) is applicable to the defendant but the amendment does not have the effect of lowering the defendant’s applicable guideline range because of the operation of another guideline or statutory provision (e.g., a statutory mandatory minimum term of imprisonment).

U.S.S.G. § 1B1.10 cmt. n.1(A). Thus, we have consistently held that a retroactive

amendment by the Sentencing Commission does not effectively “amend [a] statute

requiring [a] mandatory minimum sentence.” United States v. Smartt, 129 F.3d 539, 542 (10th Cir. 1997) (collecting cases); see also United States v. Novey, 78 F.3d 1483, 1486 (10th Cir. 1996) (“[T]he Sentencing Commission does not have the

authority to override or amend a statute.”).

In Mr. Jackson’s case, Amendment 782 has indeed decreased his base offense

level under § 2D1.1 from 30 to 28, thus lowering his sentencing range for Count One.

However, Mr. Jackson’s Count One conspiracy conviction implicates not only this

Guidelines sentencing range, but also a statutory mandatory minimum sentence of

120 months. See 21 U.S.C. § 841(b)(1)(A); see also U.S.S.G. § 5G1.1(c)(2) (“[A]

4 sentence may be imposed at any point within the applicable guideline range, provided

that the sentence . . . is not less than any statutorily required minimum sentence.”).

Because Mr. Jackson has been sentenced to 120 months’ imprisonment on Count One

and his sentence cannot be reduced below that statutory mandatory minimum,

Amendment 782 affords him no relief.2

III. CONCLUSION We AFFIRM the district court.

Entered for the Court

Carolyn B. McHugh Circuit Judge

2 Mr. Jackson also argues for the first time on appeal that we should “remand for an individually tailored determination of whether resentencing is warranted in this case, based on the district court never considering [Mr.] Jackson’s [Guidelines] range as part of the overall sentencing framework.” Aplt. Op. Br. at 10 (quotation marks omitted). To the extent Mr. Jackson is attempting to collaterally attack his sentence by arguing the district court improperly calculated it, a motion for sentence reduction pursuant to 18 U.S.C. § 3582(c) is not the proper vehicle for this argument. Moreover, even assuming Mr. Jackson is correct that the district court failed to consider his Guidelines range, he still cannot avoid the fact that the federal courts are powerless to decrease his sentence below the statutory mandatory minimum. 5