United States v. Gieswein

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 25, 2024
• Docket: 23-6064
• Status: Unpublished

Opinion

Appellate Case: 23-6064 Document: 010110989775 Date Filed: 01/25/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 25, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-6064 (D.C. No. 5:07-CR-00120-F-1) SHAWN J. GIESWEIN, (W.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, BALDOCK, and EID, Circuit Judges. _________________________________

Shawn J. Gieswein, a federal prisoner proceeding pro se, appeals the

district court’s dismissal of his motion seeking a sentence reduction under 18 U.S.C.

§ 3582(c)(2) for lack of jurisdiction. Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm.

Mr. Gieswein was convicted in 2008 of being a felon in possession of a

firearm and witness tampering. He is serving a 240-month prison sentence pursuant

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-6064 Document: 010110989775 Date Filed: 01/25/2024 Page: 2

to an amended judgment entered in 2016. Mr. Gieswein filed a motion in April 2023

seeking a sentence reduction based on an amendment to the sentencing guidelines

promulgated by the Sentencing Commission. The amendment was scheduled to be

submitted to Congress on May 1, 2023. It would take effect on November 1, 2023, if

not blocked by Congress. At the time Mr. Gieswein filed his motion, the Sentencing

Commission had not yet conducted a retroactivity impact analysis to determine

whether the relevant amendment would be applied retroactively to previously

sentenced defendants.

The district court dismissed Mr. Gieswein’s motion for lack of jurisdiction

because the court was not statutorily authorized to modify his sentence. In particular

(among other reasons), the amendment he relied on for a sentence reduction was not

yet effective in April 2023.

We review de novo the scope of the district court’s authority to modify a

sentence under § 3582(c)(2). See United States v. Williams, 575 F.3d 1075, 1076

(10th Cir. 2009). “Generally, a district court may not modify a term of imprisonment

once it has been imposed.” Id. at 1077 (internal quotation marks omitted). But

Congress has established a narrow exception to that rule of finality in § 3582(c)(2).

See id. That section authorizes a sentence reduction “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.” § 3582(c)(2). Because

the amendment that Mr. Gieswein relied on was not yet effective when he filed his

motion, the Sentencing Commission had not yet “lowered” any sentencing range. He

2 Appellate Case: 23-6064 Document: 010110989775 Date Filed: 01/25/2024 Page: 3

therefore failed to overcome the first hurdle to obtain a sentence reduction under

§ 3582(c)(2). See United States v. C.D., 848 F.3d 1286, 1289 (10th Cir. 2017).1

On appeal, Mr. Gieswein concedes that the amendment he relied on for a

sentence reduction was not yet effective when he filed his motion and that his motion

was therefore premature. His predictions that the amendment would become

effective and would be made retroactive did not give the district court jurisdiction to

act on the amendment beforehand. See id. (requiring dismissal of a motion for lack

of jurisdiction where defendant fails to show he was sentenced based on a guideline

range subsequently lowered by the Sentencing Commission).

We affirm the district court’s judgment. We deny as moot Mr. Gieswein’s

request to abate this appeal until the amendment becomes effective. We also deny

his request for assignment of his case to a new district court judge. And we deny

Mr. Gieswein’s motion to proceed on appeal without prepayment of fees and costs.

Consequently, he must immediately pay the full amount of appellate filing fees and

costs.

Entered for the Court

Bobby R. Baldock Circuit Judge

1 We take no position on whether the relevant amendment would result in a reduction of Mr. Gieswein’s sentence once it became effective.