United States v. Gonzales ( 2009 )


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  •                                                                        FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                          UNITED STATES COURT OF APPEALSJanuary 16, 2009
    
                                       TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                        Clerk of Court
    
    
     UNITED STATES OF AMERICA,
    
              Plaintiff - Appellee,
                                                             No. 08-2142
     v.                                                (D.C. No. 99-CR-01192)
                                                              (D.N.M.)
     RICHARD GONZALES,
    
              Defendant - Appellant.
    
    
                                  ORDER AND JUDGMENT *
    
    
    Before TACHA, KELLY, and McCONNELL, Circuit Judges. **
    
    
          Defendant-Appellant Richard Gonzales appeals from the district court’s
    
    denial of his motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2)
    
    and Amendment 706 to the Sentencing Guidelines. In 2000, Mr. Gonzales pled
    
    guilty to conspiracy to distribute five grams or more of cocaine base (crack), 21
    
    U.S.C. §§ 846, 841(a)(1), (b)(1)(B), and was sentenced to 130 months’
    
    
          *
            This order and judgment is not binding precedent, except under the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.
          **
             After examining the briefs and the appellate record, this three-judge
    panel has determined unanimously that oral argument would not be of material
    assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
    Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
    imprisonment and four years’ supervised release in accordance with a plea
    
    agreement. 1 Amendment 706 generally adjusted downward by two levels the base
    
    offense level applicable to crack cocaine offenses. United States v. Sharkey, 
    543 F.3d 1236
    , 1237 (10th Cir. 2008). The district court summarily denied Mr.
    
    Gonzales’ motion.
    
          Counsel has filed a brief (and served it on Mr. Gonzales) where he seeks to
    
    withdraw pursuant to Anders v. California, 
    386 U.S. 738
    , 744 (1967). We agree
    
    that there are no potentially meritorious issues on appeal because the sentence in
    
    this case was not eligible for sentence reduction. A district court has limited
    
    authority to modify a previously imposed sentence and must do so pursuant to
    
    statutory authority. United States v. Mendoza, 
    118 F.3d 707
    , 709 (10th Cir.
    
    1997). Here, the sentence was not “based on a sentencing range that has
    
    subsequently been lowered” as required by § 3582(c)(2). Although Amendment
    
    706 may appear to apply because the offense involved crack cocaine, the
    
    amendment does not because Mr. Gonzales was sentenced to 130 months’
    
    
          1
             Mr. Gonzales’ base offense level was 28, with a three-level downward
    adjustment for acceptance of responsibility, which would have resulted in an
    offense level of 25. II R. (PSR) at 5-6. However, because he was classified as a
    career offender, his adjusted offense level was 34, and he received a three-level
    downward adjustment for acceptance of responsibility, resulting in a total offense
    level of 31 and a criminal history of VI. Id. at 19-20. The guideline range was
    188 to 235 months. Id. at 20. Amendment 706 does not apply to a sentence
    based upon a higher career offender offense level pursuant to U.S.S.G.
    § 4B1.1(b). See Sharkey, 
    543 F.3d 1236
    , 1238-39 (10th Cir. 2008) (affirming
    denial of § 3582(c)(2) motion).
    
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    imprisonment based upon a specific, agreed-upon sentence. Fed. R. Crim. P.
    
    11(c)(1)(C). Such a sentence rendered the district court without jurisdiction to
    
    consider the § 3582(c)(2) motion; we will construe the district court’s summary
    
    denial as a dismissal for lack of jurisdiction. See United States v. Trujeque, 
    100 F.3d 869
    , 871 (10th Cir. 1996); see also United States v. Gonzales, No. 08-5061,
    
    
    2008 WL 5351686
    , at *2 n.3 (10th Cir. Dec. 23, 2008) (unpublished); United
    
    States v. Burks, No. 08-5064, 
    2008 WL 5102296
    , at *1 (10th Cir. Dec. 5, 2008)
    
    (unpublished); United States v. Harper, 282 F. App’x 727, 729 (10th Cir. 2008)
    
    (unpublished).
    
          APPEAL DISMISSED. Counsel’s motion to withdraw is GRANTED.
    
                                           Entered for the Court
    
    
                                           Paul J. Kelly, Jr.
                                           Circuit Judge
    
    
    
    
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