FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 22, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-6153 (D.C. No. 5:99-CR-00042-HE-1) LOY CHRIS STEVENS, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, O’BRIEN, and MORITZ, Circuit Judges. _________________________________
Proceeding pro se,1 Loy Stevens seeks a sentence reduction under 18 U.S.C.
§ 3582(c)(2). We conclude that Stevens is collaterally estopped from arguing that
Amendment 782 to the United States Sentencing Guidelines (the Guidelines) entitles
him to a reduction. And to the extent he argues that his sentence is illegal,
§ 3582(c)(2) is the wrong mechanism for relief. But we nevertheless vacate the
district court’s order because insofar as § 3582(c)(2) doesn’t empower the district
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument wouldn’t 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 isn’t 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. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 We liberally construe pro se pleadings, but we won’t act as Stevens’ advocate. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). court to reduce Stevens’ sentence, it didn’t have jurisdiction to consider his motion.
See United States v. Womack, 833 F.3d 1237, 1242 (10th Cir. 2016).
Almost two decades ago, a jury convicted Stevens of fourteen charges—most
of them gun- and drug-related. The district court sentenced Stevens to seven
consecutive 240-month prison sentences, five consecutive 120-month prison
sentences, and two consecutive 60-month prison sentences, which adds up to exactly
200 years. Since then, Stevens has repeatedly and unsuccessfully sought to reduce his
sentence. See United States v. Stevens, No. 16-6209, slip op. at 2 (10th Cir. July 21,
2016) (unpublished); United States v. Stevens, No. 15-6039, slip op. at 2 (10th Cir.
March 25, 2015) (unpublished); United States v. Stevens, No. 14-6124, slip op. at 2
(10th Cir. June 20, 2014) (unpublished); United States v. Stevens, 168 F. App’x 264,
271–72 (10th Cir. 2006) (unpublished).
In 2015, Stevens filed a pro se motion for a sentence reduction under
§ 3582(c)(2), arguing that (1) Amendment 782 to the Guidelines reduced his offense
level by two points, see § 3582(c)(2) (allowing courts to resentence defendants who
were “sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission”); and (2) his sentence is
unlawful under Apprendi v. New Jersey, 530 U.S. 466 (2000). The district court
appointed counsel to pursue Stevens’ motion. Stevens conceded through his
counsel’s supplemental motion that Amendment 782 didn’t actually affect his
Guidelines range. But he nevertheless asked the district court to revisit his sentence
in light of “the Sentencing Commission’s rationale for lowering the offense levels as
2 it did in Amendment 782.” Supplement to Defendant’s “Motion for Sentence
Reduction Pursuant to Sentencing Guideline Amendment, Under U.S.C.
§ 3582(c)(2)” at 4, United States v. Stevens, No. CR-99-42-HE (W.D. Okla. May 11,
2015), ECF No. 731. The supplemental motion didn’t address Apprendi. The district
court denied Stevens’ motion in a form order without explanation. Stevens didn’t
appeal.
Stevens, again acting pro se, then filed another § 3582(c)(2) motion in 2017.
He again argued that Amendment 782 and Apprendi entitle him to a sentence
reduction. He also argued that his sentence is illegal under a slew of other Supreme
Court decisions. The district court again denied Stevens’ motion. This time, it
explained in a short order that “[it] denied an earlier motion by [Stevens] for sentence
reduction based on Amendment 782” and “[n]othing ha[d] changed.” R. vol. 1, 90
(internal citation omitted). Stevens appeals.
When a court issues a final adjudication on an issue against a party on the
merits after the party had a full and fair opportunity to litigate, the doctrine of issue
preclusion prevents that party from later seeking a contrary resolution of the same
issue. See Dodge v. Cotter Corp., 203 F.3d 1190, 1198 (10th Cir. 2000); cf. Bravo-
Fernandez v. United States, 137 S. Ct. 352, 358 (2016) (noting issue preclusion
applies in criminal prosecutions as well as in civil litigation). Here, the district court
explained that it had already decided that Amendment 782 doesn’t entitle Stevens to
a sentence reduction. Stevens makes no attempt on appeal to explain why issue
preclusion doesn’t apply or why the district court otherwise should have revisited its
3 prior order.2 The district court’s conclusion that Amendment 782 doesn’t entitle
Stevens to a sentence reduction therefore binds us here. See Nixon v. City and Cty. of
Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (affirming because appellant failed to
address the district court’s reasoning).
The district court didn’t address Stevens’ arguments that his sentence is illegal
under Apprendi and other Supreme Court precedent. And rightly so; “[c]ourts may
grant a sentence reduction under § 3582(c)(2) only where the Sentencing
Commission has lowered a prisoner’s applicable guideline range.” United States v.
Gay, 771 F.3d 681, 686 (10th Cir. 2014). Stevens’ challenge to the legality of his
sentence thus “amounts to a collateral attack on his sentence, seeking relief beyond
that allowed in a § 3582(c)(2) proceeding.” Id. (holding that challenge to sentence
under United States v. Booker, 543 U.S. 220 (2005), wasn’t cognizable in
§ 3582(c)(2) motion); see also United States v. Price, 438 F.3d 1005, 1007 (10th Cir.
2006) (explaining that courts may only reduce a defendant’s sentence when Congress
has expressly authorized doing so and that Ҥ 3582(c)(2) only expressly allows a
reduction where the Sentencing Commission, not the Supreme Court, has lowered the
range”).
The government agrees that Stevens isn’t entitled to relief but asserts that the
district court didn’t have jurisdiction to hear Steven’s motion at all. We agree. As we
2 The doctrine of issue preclusion—rather than the law-of-the-case doctrine— governs because Stevens didn’t appeal the prior order.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 22, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-6153 (D.C. No. 5:99-CR-00042-HE-1) LOY CHRIS STEVENS, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, O’BRIEN, and MORITZ, Circuit Judges. _________________________________
Proceeding pro se,1 Loy Stevens seeks a sentence reduction under 18 U.S.C.
§ 3582(c)(2). We conclude that Stevens is collaterally estopped from arguing that
Amendment 782 to the United States Sentencing Guidelines (the Guidelines) entitles
him to a reduction. And to the extent he argues that his sentence is illegal,
§ 3582(c)(2) is the wrong mechanism for relief. But we nevertheless vacate the
district court’s order because insofar as § 3582(c)(2) doesn’t empower the district
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument wouldn’t 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 isn’t 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. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 We liberally construe pro se pleadings, but we won’t act as Stevens’ advocate. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). court to reduce Stevens’ sentence, it didn’t have jurisdiction to consider his motion.
See United States v. Womack, 833 F.3d 1237, 1242 (10th Cir. 2016).
Almost two decades ago, a jury convicted Stevens of fourteen charges—most
of them gun- and drug-related. The district court sentenced Stevens to seven
consecutive 240-month prison sentences, five consecutive 120-month prison
sentences, and two consecutive 60-month prison sentences, which adds up to exactly
200 years. Since then, Stevens has repeatedly and unsuccessfully sought to reduce his
sentence. See United States v. Stevens, No. 16-6209, slip op. at 2 (10th Cir. July 21,
2016) (unpublished); United States v. Stevens, No. 15-6039, slip op. at 2 (10th Cir.
March 25, 2015) (unpublished); United States v. Stevens, No. 14-6124, slip op. at 2
(10th Cir. June 20, 2014) (unpublished); United States v. Stevens, 168 F. App’x 264,
271–72 (10th Cir. 2006) (unpublished).
In 2015, Stevens filed a pro se motion for a sentence reduction under
§ 3582(c)(2), arguing that (1) Amendment 782 to the Guidelines reduced his offense
level by two points, see § 3582(c)(2) (allowing courts to resentence defendants who
were “sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission”); and (2) his sentence is
unlawful under Apprendi v. New Jersey, 530 U.S. 466 (2000). The district court
appointed counsel to pursue Stevens’ motion. Stevens conceded through his
counsel’s supplemental motion that Amendment 782 didn’t actually affect his
Guidelines range. But he nevertheless asked the district court to revisit his sentence
in light of “the Sentencing Commission’s rationale for lowering the offense levels as
2 it did in Amendment 782.” Supplement to Defendant’s “Motion for Sentence
Reduction Pursuant to Sentencing Guideline Amendment, Under U.S.C.
§ 3582(c)(2)” at 4, United States v. Stevens, No. CR-99-42-HE (W.D. Okla. May 11,
2015), ECF No. 731. The supplemental motion didn’t address Apprendi. The district
court denied Stevens’ motion in a form order without explanation. Stevens didn’t
appeal.
Stevens, again acting pro se, then filed another § 3582(c)(2) motion in 2017.
He again argued that Amendment 782 and Apprendi entitle him to a sentence
reduction. He also argued that his sentence is illegal under a slew of other Supreme
Court decisions. The district court again denied Stevens’ motion. This time, it
explained in a short order that “[it] denied an earlier motion by [Stevens] for sentence
reduction based on Amendment 782” and “[n]othing ha[d] changed.” R. vol. 1, 90
(internal citation omitted). Stevens appeals.
When a court issues a final adjudication on an issue against a party on the
merits after the party had a full and fair opportunity to litigate, the doctrine of issue
preclusion prevents that party from later seeking a contrary resolution of the same
issue. See Dodge v. Cotter Corp., 203 F.3d 1190, 1198 (10th Cir. 2000); cf. Bravo-
Fernandez v. United States, 137 S. Ct. 352, 358 (2016) (noting issue preclusion
applies in criminal prosecutions as well as in civil litigation). Here, the district court
explained that it had already decided that Amendment 782 doesn’t entitle Stevens to
a sentence reduction. Stevens makes no attempt on appeal to explain why issue
preclusion doesn’t apply or why the district court otherwise should have revisited its
3 prior order.2 The district court’s conclusion that Amendment 782 doesn’t entitle
Stevens to a sentence reduction therefore binds us here. See Nixon v. City and Cty. of
Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (affirming because appellant failed to
address the district court’s reasoning).
The district court didn’t address Stevens’ arguments that his sentence is illegal
under Apprendi and other Supreme Court precedent. And rightly so; “[c]ourts may
grant a sentence reduction under § 3582(c)(2) only where the Sentencing
Commission has lowered a prisoner’s applicable guideline range.” United States v.
Gay, 771 F.3d 681, 686 (10th Cir. 2014). Stevens’ challenge to the legality of his
sentence thus “amounts to a collateral attack on his sentence, seeking relief beyond
that allowed in a § 3582(c)(2) proceeding.” Id. (holding that challenge to sentence
under United States v. Booker, 543 U.S. 220 (2005), wasn’t cognizable in
§ 3582(c)(2) motion); see also United States v. Price, 438 F.3d 1005, 1007 (10th Cir.
2006) (explaining that courts may only reduce a defendant’s sentence when Congress
has expressly authorized doing so and that Ҥ 3582(c)(2) only expressly allows a
reduction where the Sentencing Commission, not the Supreme Court, has lowered the
range”).
The government agrees that Stevens isn’t entitled to relief but asserts that the
district court didn’t have jurisdiction to hear Steven’s motion at all. We agree. As we
2 The doctrine of issue preclusion—rather than the law-of-the-case doctrine— governs because Stevens didn’t appeal the prior order. See Scrivner v. Mashburn (In re Scrivner), 535 F.3d 1258, 1266 (10th Cir. 2008) (explaining that when party fails to appeal lower-court order, issue preclusion, not law of the case, governs subsequent appellate review). 4 have previously explained, when the district court lacks the power to reduce a
defendant’s sentence, the defendant’s § 3582(c)(2) motion should be dismissed on
jurisdictional grounds. See Womack, 833 F.3d at 1242. Therefore, because we
conclude that Stevens isn’t entitled to a sentence reduction, we vacate the district
court’s judgment and remand with instructions to dismiss Stevens’ motion.
As a final matter, we deny Stevens’ motion to proceed in forma pauperis (IFP)
on appeal because he has failed to present a nonfrivolous basis for challenging the
district court’s ruling. See 28 U.S.C. § 1915(a)(3) (allowing appeals to be taken IFP
only if taken in good faith); United States v. Silva, 430 F.3d 1096, 1100 (10th Cir.
2005) (explaining that appellant may appeal IFP only if “there exists ‘a reasoned,
nonfrivolous argument on the law and facts in support of the issues raised on
appeal’” (quoting McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th
Cir.1997))).
Entered for the Court
Nancy L. Moritz Circuit Judge