Appellate Case: 21-3216 Document: 010110671022 Date Filed: 04/14/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 14, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-3216 (D.C. No. 2:11-CR-20031-JWL-1) JUAN MANUEL CORTEZ-DIAZ, (D. Kan.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

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

Proceeding pro se, Juan Cortez-Diaz appeals an order denying his motion for a

reduced sentence under 18 U.S.C. § 3582(c)(1)(A).1 For the reasons set out below,

we affirm.

A jury convicted Cortez-Diaz of several drug offenses stemming from his role

in an interstate methamphetamine operation. Even though Cortez-Diaz had no prior

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 1 We construe Cortez-Diaz’s pro se brief liberally, but we do not act as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). Appellate Case: 21-3216 Document: 010110671022 Date Filed: 04/14/2022 Page: 2

convictions, his recommended sentence under the United States Sentencing

Guidelines (the Guidelines) was life in prison, based primarily on the weight and

purity of the drugs involved and the application of several offense-level

enhancements. The district court ultimately imposed the recommended Guidelines

sentence of life in prison, and we affirmed that sentence as procedurally and

substantively reasonable. See United States v. Cortez-Diaz, 565 F. App’x 741, 750

(10th Cir. 2014) (unpublished). Seven years later, in 2021, Cortez-Diaz filed the

motion at issue in this appeal, alleging that “extraordinary and compelling reasons”

warranted a reduction in his sentence. § 3582(c)(1)(A). The district court disagreed

and denied the motion, and Cortez-Diaz appeals.2

Cortez-Diaz argues that the district court abused its discretion in denying his

§ 3582(c)(1)(A) motion. See United States v. Mannie, 971 F.3d 1145, 1155 (10th Cir.

2020) (reviewing denial of sentence-reduction motion for abuse of discretion). To

reduce a defendant’s sentence under § 3582(c)(1)(A), the district court must find that

2 Notably, the district court bypassed the government’s threshold argument that Cortez-Diaz failed to exhaust administrative remedies, see § 3582(c)(1)(A), reasoning that it need not address the argument because exhaustion is not a jurisdictional requirement. Although we have since confirmed that exhaustion is nonjurisdictional, we made clear that it remains a mandatory claims-processing rule. See United States v. Hemmelgarn, 15 F.4th 1027, 1030–31 (10th Cir. 2021). Accordingly, the district court should have addressed exhaustion when the government properly invoked it below. See Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 17 (2017) (“If properly invoked, mandatory claim-processing rules must be enforced.”). Nevertheless, we resolve this appeal on the merits (as the district court did) because the government declined to file a brief on appeal and thus waived the exhaustion issue. See Hemmelgarn, 15 F.4th at 1031 (treating exhaustion argument as waived and reaching merits because government did not renew it on appeal). 2 Appellate Case: 21-3216 Document: 010110671022 Date Filed: 04/14/2022 Page: 3

a reduction is (1) justified by “extraordinary and compelling reasons”; (2) “consistent

with applicable policy statements issued by the Sentencing Commission”; and

(3) supported by “the factors set forth in [18 U.S.C.] § 3553(a), to the extent that they

are applicable.” United States v. McGee, 992 F.3d 1035, 1042 (10th Cir. 2021). Here,

the district court determined that Cortez-Diaz failed the first requirement because he

alleged no extraordinary and compelling reasons to reduce his sentence. We agree.

As in the district court, Cortez-Diaz primarily argues that an intervening

change in law justifies a reduced sentence. Specifically, he notes that a few years

after he was sentenced, Congress lowered the mandatory minimum prison term for

some drug offenses from life to 25 years. See First Step Act of 2018, Pub. L. No.

115-391, § 401, 132 Stat. 5194, 5220–21 (2018) (amending 21 U.S.C. § 841(b)(1)).

But as the district court explained, that change does not affect Cortez-Diaz: His life

sentence resulted from the application of the Guidelines, not a statutory mandatory

minimum. Indeed, Cortez-Diaz could not have received the relevant mandatory

minimum because it requires two prior felony convictions, see § 841(b)(1)(A), and he

“had no countable criminal[-]history points,” Cortez-Diaz, 565 F. App’x at 745 n.8.

Since the intervening legal change Cortez-Diaz cites does not apply to him, the

district court properly determined that such change does not qualify as an

extraordinary and compelling reason to reduce his sentence.

Aside from an intervening change in law, the only other circumstance Cortez-

Diaz mentions is his “postconviction rehabilitation” efforts, particularly his prison

employment. Aplt. Br. 14. A statute makes clear, however, that “[r]ehabilitation of

3 Appellate Case: 21-3216 Document: 010110671022 Date Filed: 04/14/2022 Page: 4

the defendant alone shall not be considered an extraordinary and compelling reason”

for a sentence reduction. 28 U.S.C. § 994(t); see also McGee, 992 F.3d at 1043. Thus,

Cortez-Diaz’s rehabilitation, without more, does not support § 3582(c)(1)(A) relief.

In sum, because Cortez-Diaz offered no extraordinary and compelling reasons

to reduce his sentence, the district court did not abuse its discretion in denying his

§ 3582(c)(1)(A) motion. We affirm.

Entered for the Court

Nancy L. Moritz Circuit Judge

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