APPEALS
FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF OKLAHOMA (D.C. No. 5:13-CR-00062-HE-1)
Susan
M. Otto, Federal Public Defender, Oklahoma City, Oklahoma,
for Defendant-Appellant.
Steven
W. Creager, Assistant United States Attorney (Mark A. Yancey,
Acting United States Attorney, with him on the brief),
Oklahoma City, Oklahoma, for Plaintiff-Appellee.
Before
GORSUCH, BALDOCK, and PHILLIPS, Circuit Judges.
BALDOCK, Circuit Judge.
Defendant
Elias Vega Amado appeals two district court decisions denying
his respective motions for reduction of sentence pursuant to
18 U.S.C. § 3582(c)(2). Because these appeals do not
require us to address the scope of the district court's
authority under § 3582(c)(2), we review its decisions
only for an abuse of discretion. United States v.
Kurtz, 819 F.3d 1230, 1233 (10th Cir. 2016). Wading
through this imbroglio, we affirm the district court's
decision to deny Defendant's first motion, vacate its
decision to deny his second motion, and remand with
instructions to dismiss the latter motion for want of
subject-matter jurisdiction.
I.
Defendant,
an illegal immigrant, was caught in 2013 with lots of guns,
ammunition, drugs, money, and other incriminating evidence.
Officials seized 525.4 grams of methamphetamine, 15.1 grams
of cocaine, more than $425, 000 in cash, at least 8 firearms,
and loads of ammunition, including a hand grenade, all
attributable to Defendant. The Government charged Defendant
in a five-count indictment with (1) possessing
methamphetamine with intent to distribute in violation of 21
U.S.C. § 841(a)(1); (2) being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1); (3) being
an illegal alien in possession of a firearm in violation of
18 U.S.C. § 922(g)(5)(A); (4) possessing a firearm in
furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1)(A); and (5) reentering the United
States illegally in violation of 8 U.S.C. § 1326(a)(1).
Defendant pled guilty to Counts 1 and 5 of the indictment
pursuant to a plea agreement. As part of his plea agreement,
Defendant "knowingly and voluntarily waive[d] his right
to . . . move to modify under 18 U.S.C. 3582(c)(2) or some
other ground, his sentence as imposed by the court[.]"
Based on an offense level of 37 and a criminal history
category of II, Defendant's guideline range was 235 to
293 months' imprisonment on the drug count. The district
court sentenced Defendant to 240 months' imprisonment on
that count and a concurrent term of 120 months'
imprisonment (the maximum allowable) on the illegal reentry
count. Consistent with the terms of his plea agreement,
Defendant did not pursue a direct appeal.
Subsequently,
Amendment 782 to the Sentencing Guidelines took effect on
November 1, 2014. U.S.S.G. app. C suppl., amend. 782 at 64
(2015). Amendment 782 "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." Kurtz, 819 F.3d at 1234
(internal quotations omitted). Application of Amendment 782
to Defendant's drug conviction would reduce his offense
level to 35 and his applicable guideline range to 188 to 235
months' imprisonment. Despite his plea waiver, Defendant
filed a motion pursuant to 18 U.S.C. § 3582(c)(2) for a
reduction of sentence. Section 3582(c)(2) empowers a district
court to reduce a previously imposed sentence "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[.]" Importantly, a sentence reduction is not
mandatory in the case of a qualifying defendant. Rather,
"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." (emphasis added). The Government
opposed Defendant's motion both on the basis of his plea
waiver and the seriousness of his criminal misconduct. The
district court denied the motion without explanation and
Defendant appealed.
Three
months after filing his first appeal, Defendant moved to
"hold briefing in abeyance." According to
Defendant, the Government had decided not to oppose any
subsequent motion he might make for a sentence reduction
pursuant to § 3582(c)(2) and Amendment 782. We tolled
briefing. With his first appeal still pending, Defendant
returned to district court and again moved for a reduction of
sentence. And again the district court denied the motion.
This time, however, the court explained in a written order
not only why it denied Defendant's second motion but also
his first motion. The court opined that Defendant's first
motion did not present a close question. In his plea
agreement, Defendant had waived his right to pursue a
sentence reduction under § 3582(c)(2). Additionally, the
seriousness of Defendant's criminal conduct coupled with
a previous conviction for illegal gun possession amply
supported the Government's original concern for public
safety and a substantial sentence based on the § 3553(a)
sentencing factors.[1]
The
district court then turned to Defendant's second motion.
The court initially questioned its jurisdiction over the
motion, referring to the oft-cited rule that a notice of
appeal generally divests the district court of jurisdiction
over issues on appeal. See United States v. Battles,
745 F.3d 436, 448 (10th Cir. 2014). The court ultimately but
reluctantly relied, however, on an obscure federal rule to
exercise jurisdiction. Federal Rule of Criminal Procedure 37
is entitled "Ruling on a Motion for Relief That is
Barred by a Pending Appeal." Subsection (a), applicable
here, provides:
If a timely motion is made for relief that the
[district] court lacks authority to grant because of an
appeal that has been docketed and is pending, the court may:
(1)defer considering the ...