Case Information
*1 Before LUCERO , MATHESON , and BACHARACH , Circuit Judges.
This appeal involves the availability of sentence modification for career offenders. In 2010, Mr. Marc Thomas Banyai pleaded guilty to drug and gun charges and was sentenced as a career offender to 120 months of imprisonment and 60 months of supervised release. He moved to reduce his sentence under Amendment 782 of the United States Sentencing *2 Guidelines. The district court denied the motion, reasoning that career offenders are not eligible for a sentence reduction under the amendment. Mr. Banyai appeals and seeks leave to proceed in forma pauperis. We grant leave to proceed in forma pauperis and vacate the denial of relief with instructions to dismiss Mr. Banyai’s motion based on an absence of jurisdiction.
Mr. Banyai cannot afford to prepay the filing fee and presents a
nonfrivolous claim. Thus, we grant leave to proceed in forma pauperis.
DeBardeleben v. Quinlan
,
Because we are allowing leave to proceed in forma pauperis, we proceed to consider Mr. Banyai’s two claims:
1. Amendment 782 of the sentencing guidelines authorizes a sentence reduction.
2. The sentence was based on an overly vague sentencing guideline.
The district court lacked jurisdiction to consider the first argument, and Mr. Banyai failed to make the second argument until this appeal.
In district court, Mr. Banyai invoked 18 U.S.C. § 3582(c)(2), which
permits district courts to reduce a prisoner’s sentence “that has
subsequently been lowered by the Sentencing Commission . . . if such a
reduction is consistent with applicable policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3582(c). Amendment 782 of the
United States Sentencing Guidelines allows a retroactive two-level
*3
reduction under §§ 2D1.1 and 2D1.11 of the guidelines. U.S. Sentencing
Guidelines Manual § 1B1.10 App’x C Supplement, Amendment 782 (Nov.
1, 2014). But Amendment 782 does not apply to career offenders,
[1]
for their
sentences are calculated under § 4B1.1—not §§ 2D1.1 and 2D1.11.
United States v. Perez
, No. 15-2150,
Federal district courts lack jurisdiction to modify a term of
imprisonment in the absence of an applicable exception under § 3582(c).
United States v. White
,
[2] Some circuits take a different approach, treating lack of power under
§ 3582(c) as a substantive defect rather than a jurisdictional defect.
United States v. Taylor
,
Mr. Banyai also argues that his sentence should be reduced on
vagueness grounds under the Supreme Court’s recent decision in
Johnson
v. United States
, __ U.S. __,
* * *
In district court, Mr. Banyai asserted only one ground for relief. Because the district court lacked jurisdiction to consider that argument, we remand with instructions to dismiss Mr. Banyai’s § 3582(c)(2) motion for lack of jurisdiction.
Entered for the Court Robert E. Bacharach Circuit Judge ______________________________
be authorized to grant”);
United States v. Johnson
,
Notes
[*] We do not believe oral argument would be helpful. As a result, we are deciding the appeal based on the briefs. 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 the 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).