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United States v. Amado

United States Court of Appeals, Tenth Circuit

November 14, 2016

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
ELIAS VEGA AMADO, Defendant-Appellant.

         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 ...

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