`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`UNITED STATES OF AMERICA,
`
` Plaintiff - Appellee,
`
`v.
`
`JESUS CERVANTES-AGUILAR,
`
` Defendant - Appellant.
`
`
`
`
`No. 24-3195
`(D.C. No. 2:18-CR-20030-JAR-2)
`(D. Kan.)
`_________________________________
`ORDER AND JUDGMENT*
`_________________________________
`Before TYMKOVICH, BALDOCK, and FEDERICO, Circuit Judges.
`_________________________________
`Jesus Cervantes -Aguilar appeals the district court’s denial of his request for
`sentence reduction . He sought a reduction under 18 U.S.C. § 3582(c)(2) on the
`grounds he was a zero -point offender and was entitled to a lower offense level based
`on amended guidelines . The district court denied his motion because his sentence
`was already below the guideline range even with a two-level reduction. 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 ma y be cited, however, for its persuasive value consistent with
`Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`May 5, 2025
`
`Christopher M. Wolpert
`Clerk of Court
`Appellate Case: 24-3195 Document: 16-1 Date Filed: 05/05/2025 Page: 1
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`2
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`Section 3582(c)(2) allows a sentence reduction for 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.” And the Sentencing
`Commission’s Amendment 821 offers a 2- level reduction for the offense level of any
`offender with no criminal history. U.S.S.G. § 4C1.1. We review a district court’s
`order denying a motion filed pursuant to § 3582(c)(2) for abuse of discretion. United
`States v. Hemmelgarn , 15 F.4th 1027, 1031 (10th Cir. 2021). We will not disturb the
`district’s order unless “it relies on an incorrect conclusion of law or a clearly
`erroneous finding of fact.” Id. (quoting United States v. Battle, 706 F.3d 1313, 1317
`(10th Cir. 2013)).
`Cervantes -Aguilar committed multiple crimes related to the possession and
`manufacture of methamphetamine. See United States v. Cortez -Nieto, 43 F.4th 1034
`(10th Cir. 2022) (summarizing underlying facts). The district court sentenced him to
`240 months of imprisonment. Two years later, he filed a sentence reduction motion
`pursuant to 18 U.S.C. § 3582(c)(2), seeking retroactive application of then recently
`issued Sentencing Guidelines Amendment 821. He argued that he was a zero -point
`offender (meaning he h ad no criminal history) and this entitled him to a two- level
`reduction in offense level.
`But that does not warrant a sentence reduction in this case. The Sentencing
`Guidelines, U.S.S.G. § 1B1.10(2)(A), provide that “the court shall not reduce the
`defendant ’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy
`statement to a term that is less than the minimum of the amended guideline range.”
`Appellate Case: 24-3195 Document: 16-1 Date Filed: 05/05/2025 Page: 2
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`And § 1B1.10(2)(B) clarifies that “if the original term of imprisonment constituted a
`non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States
`v. Booker, 543 U.S. 220 (2005), a further reduction generally would not be
`appropriate. ”
`Cervantes -Aguilar’s original offense level was calculated at 42, and with a
`criminal history score of I, the guideline range for his offense was 360 months to life
`imprisonment. If his offense level were reduced by 2, down to 40, his guideline
`range would have been 292– 365 months. The 240-month sentence he received is
`below the minimum in either scenario.
`This sentence “constituted a non -guideline sentence ,” and would be “ less than
`the minimum of the amended guideline range.” U.S.S.G. § 1B1.10(2)(A), (B). So
`§ 3582(c)(2) does not authorize or require a lower sentence. The district court did
`not abuse its discretion to determine that Amendment 821 affords no relief to
`Cervantes -Aguilar. 1
`We affirm.
`Entered for the Court
`
`
`Timothy M. Tymkovich
`Circuit Judge
`
`1 Cervantes -Aguilar’s reply brief in this appeal was submitted on April 17,
`2025, despite being due March 28, 2025. No explanation or excuse was given for the
`untimely filing. Although he is representing himself pro se, and we construe his
`arguments liberally, a pro se defendant must follow the same rules of procedure and
`meet the same deadlines as represented parties. Green v. Dorrell , 969 F.2d 915, 917
`(10th Cir. 1992). We therefore decline to consider his reply.
`Appellate Case: 24-3195 Document: 16-1 Date Filed: 05/05/2025 Page: 3
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