United States v. Cordova ( 2015 )


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  •                                                                                     FILED
                                                                            United States Court of Appeals
                          UNITED STATES COURT OF APPEALS                            Tenth Circuit
    
                                 FOR THE TENTH CIRCUIT                           December 30, 2015
                             _________________________________
                                                                                Elisabeth A. Shumaker
                                                                                    Clerk of Court
    UNITED STATES OF AMERICA,
    
          Plaintiff - Appellee,
    
    v.                                                            No. 15-2116
                                                        (D.C. No. 1:11-CR-00290-LH-1)
    HECTOR CORDOVA,                                            (D. New Mexico)
    
          Defendant - Appellant.
                          _________________________________
    
                                 ORDER AND JUDGMENT*
                             _________________________________
    
    Before KELLY, LUCERO, and McHUGH, Circuit Judges.
                      _________________________________
    
    
           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.
    
           Defendant-Appellant Hector Cordova appeals the district court’s reduction of his
    
    sentence based on Amendment 782 to the United States Sentencing Guidelines
    
    (Guidelines), which “adjust[s] downward by two levels” the base offense level assigned
    
    to certain drug-trafficking offenses. U.S. Sentencing Guidelines Manual app. C, amend.
    ________________
           *
            This order and judgment is not binding precedent, except under the doctrines of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.
    782 (2014). Mr. Cordova challenges the district court’s calculation of his revised
    
    Guidelines range based on the quantity of methamphetamine (actual) he admitted
    
    possessing in the plea agreement, rather than the total amount of the mixture of which the
    
    actual methamphetamine was a part.1 Counsel for Mr. Cordova has moved to withdraw in
    
    a brief filed pursuant to Anders v. California, 
    386 U.S. 738
     (1967). Exercising
    
    jurisdiction under 28 U.S.C. § 1291, we dismiss this appeal and grant Mr. Cordova’s
    
    counsel’s request to withdraw.
    
                                      I.   BACKGROUND
    
           Mr. Cordova pled guilty in 2011 to a charge of violating 21 U.S.C. §§ 841(a)(1),
    
    (b)(1)(A), and 18 U.S.C. § 2 for the Distribution, or Aiding and Abetting the Distribution,
    
    of 500 Grams and More of a Mixture and Substance Containing a Detectable Amount of
    
    Methamphetamine. In the plea agreement, Mr. Cordova stipulated to the possession of
    
    3.14 net kilograms of methamphetamine that was 85.5% pure, which Mr. Cordova also
    
    stipulated in the plea agreement amounted to possession of 2.684 net kilograms of
    
    methamphetamine (actual). (Plea Agrmnt. 4.)
    
           Mr. Cordova’s “advisory guidelines sentence was calculated by comparing the
    
    amount of methamphetamine mixture [3.14 net kilograms] with the actual amount of pure
    
    methamphetamine contained in the mixture [2.684 net kilograms], and then using
    
    whichever amount would result in a higher offense level.” See United States v.
    
    
    ________________
           1
              “Methamphetamine (actual)” refers “to the weight of the controlled substance,
    itself, contained in the mixture or substance.” U.S.S.G. § 2D1.1(c) n.(B).
    
    
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    Santillanes, 274 F. App’x 718, 718 (10th Cir. 2008).2 Possession with intent to distribute
    
    “1.5 [kilograms] or more of Methamphetamine (actual)” established a base offense level
    
    of thirty-eight under the applicable Sentencing Guidelines’ Drug Quantity Table at the
    
    time. U.S.S.G. § 2D1.1(c)(1) (2011). This was greater than the base offense level of
    
    thirty-four advised for possession with intent to distribute “[a]t least 1.5 KG but less than
    
    5 KG of Methamphetamine [mixture]” in the Drug Quantity Table in force at the time.
    
    See U.S.S.G. § 2D1.1(c)(3) (2011). As a result, Mr. Cordova’s presentence report (PSR)
    
    followed Note B to the Drug Quantity Table and calculated his base offense level as the
    
    greater of the two. See U.S.S.G. § 2D1.1(c) n.(B). The PSR also noted that a mandatory
    
    minimum of ten years applied under 21 U.S.C. § 841(b)(1)(A).
    
            Beginning with the base offense level of thirty-eight, therefore, the PSR then
    
    recommended a three-level reduction for acceptance of responsibility. See U.S.S.G.
    
    § 3E1.1. The resulting total offense level of thirty-five, coupled with Mr. Cordova’s
    
    criminal-history category of II, corresponded to a guideline imprisonment range of 188 to
    
    235 months. The district court sentenced Mr. Cordova at the low end of the guideline
    
    range to 188 months in prison, with five years of supervised release. (J. of June 6, 2012,
    
    at 2, 3.)
    
    
    
    
    ________________
            2
              See U.S.S.G. § 2D1.1(c) n.(B) (“In the case of a mixture or substance containing
    . . . methamphetamine, use the offense level determined by the entire weight of the
    mixture or substance, or the offense level determined by the weight of the . . .
    methamphetamine (actual), whichever is greater.” (emphasis added)).
    
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           Mr. Cordova did not object at sentencing to a Guidelines calculation based on the
    
    quantity of methamphetamine (actual) he had admitted possessing in the plea agreement.3
    
    He also did not appeal the sentence at that time. But just over a year later, Mr. Cordova
    
    filed a motion to vacate the sentence under 28 U.S.C. § 2255 on the basis of ineffective
    
    assistance of counsel for failing to appeal the judgment. The district court denied Mr.
    
    Cordova’s motion as untimely. This court then denied Mr. Cordova’s application for a
    
    certificate of appealability based on his untimely, and thus procedurally barred, § 2255
    
    motion, and we dismissed his appeal. See United States v. Cordova, 589 F. App’x 400,
    
    400 (10th Cir. 2014).
    
           In 2014, the U.S. Sentencing Commission issued Amendment 782, which reduced
    
    the base offense levels for many of the drug quantities listed in the guidelines tables.
    
    Mr. Cordova filed a pro se motion on February 17, 2015, requesting a reduction in his
    
    sentence under this amendment. In addition to requesting the statutory reduction, Mr.
    
    Cordova argued the district court had incorrectly based his original sentence on the
    
    quantity of methamphetamine actual rather than on the methamphetamine mixture
    
    referred to in the indictment, which had charged him with one count of “Distribution of
    
    500 Grams and More of a Mixture and Substance Containing a Detectable Amount of
    
    Methamphetamine.”
    
    
    ________________
           3
             At sentencing, the district court discussed Mr. Cordova’s previously filed
    challenges to the PSR in which he argued the court should consider a downward
    departure based on Mr. Cordova’s contention that he had only played a minor role in the
    offense. The district court rejected this contention, as had the PSR.
    
                                                     4
           After counsel was appointed to represent Mr. Cordova in his motion for a sentence
    
    reduction, Mr. Cordova and the Government stipulated as to his eligibility for the
    
    statutory sentence reduction. The parties agreed that the new Guidelines range for
    
    sentencing after applying the two-level reduction under Amendment 782 was 151 to 188
    
    months in prison, and Mr. Cordova requested a sentence of 151 months. The district court
    
    granted Mr. Cordova’s motion and reduced his sentence from 188 months to 151 months,
    
    consistent with the original sentence at the low end of the previously applicable
    
    guidelines range. Before his resentencing, however, Mr. Cordova informed both his
    
    counsel and the court that he believed the district court should also reduce his sentence by
    
    recalculating his Guidelines sentencing range based on the quantity of methamphetamine
    
    mixture, rather than the quantity of methamphetamine (actual) which he admitted
    
    possessing. But in granting the two-level reduction in his base offense level under
    
    Amendment 782, the district court did not address Mr. Cordova’s mixture vs. actual
    
    argument.
    
           Mr. Cordova timely filed a notice of appeal, again arguing that “[t]he district
    
    court’s sentence derives the Base Offense level using the actual methamphetamine
    
    contained within the mixture resulting in 4 levels more than what the mixture triggers”
    
    instead of calculating the sentence based on “the drug type admitted to in the Plea
    
    Agreement,” by which we infer he means “500 grams or more of a mixture and substance
    
    containing a detectable amount of methamphetamine.” In response, Mr. Cordova’s
    
    counsel filed a brief to this court, as permitted by Anders v. California, advising the court
    
    
    
    
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    that he finds Mr. Cordova’s appeal “to be wholly frivolous, after a conscientious
    
    examination of it” and “request[ing] permission to withdraw.” 
    386 U.S. 738
    , 744 (1967).
    
           Specifically, defense counsel’s Anders brief examines Mr. Cordova’s arguments in
    
    detail and concludes the district court did not err in failing to address Mr. Cordova’s
    
    argument because it lacked authority to do so. Defense counsel also argues that even if
    
    considered on the merits, Mr. Cordova’s argument fails because he admitted in the plea
    
    agreement to the quantity of methamphetamine (actual), and the Guidelines specifically
    
    instruct the sentencing court to evaluate the quantity of the mixture against the actual and
    
    to base the Guidelines range on whichever results in the greater offense level. See
    
    U.S.S.G. § 2D1.1(c) n.(B).
    
           Mr. Cordova filed objections and a response to the Anders brief in which he
    
    reiterates his arguments from the resentencing proceedings. The Government then
    
    notified the court of its intent not to file a response brief, explaining that it has reviewed
    
    the Anders brief, Mr. Cordova’s response, and the record and agrees with defense counsel
    
    that “there is no meritorious basis for appellant’s appeal.”
    
                                         II.   DISCUSSION
    
           To obtain leave to withdraw under Anders in a direct criminal appeal “where
    
    counsel conscientiously examines a case and determines that any appeal would be wholly
    
    frivolous,” counsel for the defendant must “submit a brief to the client and the appellate
    
    court indicating any potential appealable issues based on the record.” United States v.
    
    Calderon, 
    428 F.3d 928
    , 930 (10th Cir. 2005); see also 10th Cir. R. 46.4(B)(2). “The
    
    client may then choose to submit arguments to the court. The Court must then conduct a
    
    
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    full examination of the record to determine whether defendant’s claims are wholly
    
    frivolous. If the court concludes after such an examination that the appeal is frivolous, it
    
    may grant counsel’s motion to withdraw and may dismiss the appeal.” Calderon, 428
    
    F.3d at 930 (citations omitted). We must review defense counsel’s brief and the record to
    
    determine whether Mr. Cordova has any nonfrivolous grounds for appeal and whether to
    
    grant defense counsel’s request to withdraw.
    
           Mr. Cordova moved the district court pursuant to 18 U.S.C. § 3582(c)(2) to
    
    resentence him based on Amendment 782, which implements a two-level reduction to the
    
    base offense level in the Drug Quantity Tables applicable to Mr. Cordova’s offense.
    
    Section 3582(c)(2) authorizes a district court to amend a defendant’s “term of
    
    imprisonment based on a sentencing range that has subsequently been lowered by the
    
    Sentencing Commission.” The district court granted Mr. Cordova’s statutory sentence
    
    reduction under Amendment 782 without addressing Mr. Cordova’s additional argument
    
    about the quantity used to calculate the guideline range applicable to his original
    
    sentencing.
    
           “A judge’s resentencing authority is a creation of statute.” United States v. Gay,
    
    
    771 F.3d 681
    , 686 (10th Cir. 2014) (ellipsis omitted). “A district court is authorized to
    
    modify a defendant’s sentence only in specified instances where Congress has expressly
    
    granted the court jurisdiction to do so.” Id. (emphasis and brackets omitted). And “[w]e
    
    review de novo the scope of a district court’s authority to resentence a defendant in a
    
    § 3582(c)(2) proceeding,” id. at 685, mindful that “[a] district court does not have
    
    
    
    
                                                     7
    inherent authority to modify a previously imposed sentence; it may do so only pursuant to
    
    statutory authorization,” United States v. Mendoza, 
    118 F.3d 707
    , 709 (10th Cir. 1997).
    
           The Guidelines expressly refer to the extremely limited nature of the district
    
    court’s authority to reduce a sentence. See U.S.S.G. § 1B1.10(a)(3) (noting that
    
    “proceedings under 18 U.S.C. § 3582(c)(2) and this policy statement do not constitute a
    
    full resentencing of the defendant.”). Specifically, the Guidelines provide that “the court
    
    shall determine the amended guideline range that would have been applicable to the
    
    defendant if [Amendment 782] had been in effect at the time the defendant was
    
    sentenced” by substituting the new guideline range applicable under Amendment 782
    
    “for the corresponding guideline provisions that were applied when the defendant was
    
    sentenced and shall leave all other guideline application decisions unaffected.” Id.
    
    § 1B1.10(b)(1) (emphasis added). Thus, “Section 3582(c)(2) proceedings are ‘narrow’ in
    
    scope and authorize ‘only a limited adjustment to an otherwise final sentence and not a
    
    plenary resentencing proceeding.’” Gay, 771 F.3d at 686 (quoting Dillon v. United States,
    
    
    560 U.S. 817
    , 826 (2010)).
    
           Here, as in Gay, Mr. Cordova “attempts to use the § 3582(c)(2) proceeding as a
    
    stepping stone to this court to collaterally attack his original sentence.” Id. at 683. Mr.
    
    Cordova’s argument that the district court erroneously employed a guideline range
    
    applicable to the quantity of methamphetamine actual rather than the quantity of
    
    methamphetamine mixture, both of which he admitted possessing in the plea agreement,
    
    “amounts to a collateral attack on his sentence, seeking relief beyond that allowed in a
    
    § 3582(c)(2) proceeding.” Id. at 686. Such an attack must be made on direct appeal or
    
    
                                                      8
    under 28 U.S.C. § 2255. See United States v. Smartt, 
    129 F.3d 539
    , 540 (10th Cir. 1997).
    
    And, like the district court, we have no authority to grant Mr. Cordova relief on a
    
    collateral attack of his sentence falling outside the purview of the very limited scope of
    
    the § 3582(c)(2) proceeding. Gay, 771 F.3d at 683; see also Freeman v. United States,
    
    
    131 S. Ct. 2685
    , 2693 (2011) (plurality opinion) (holding that in Section 3582(c)(2)
    
    resentencing proceedings, “[a]ll Guidelines decisions from the original sentencing remain
    
    in place, save the sentencing range that was altered by retroactive amendment.” (citing
    
    U.S.S.G. § 1B1.10(b)(1)).4
    
                                      III.   CONCLUSION
    
           Upon de novo review of the record and the standards governing the application of
    
    Section 3582(c)(2), we agree with defense counsel that any appeal of Mr. Cordova’s
    
    revised sentence under Amendment 782, “would be wholly frivolous.” United States v.
    
    Calderon, 
    428 F.3d 928
    , 930 (10th Cir. 2005). Accordingly, we dismiss this appeal and
    
    grant defense counsel’s motion to withdraw.
    
    
                                                  Entered for the Court
    
                                                  Carolyn B. McHugh
                                                  Circuit Judge
    
    ________________
           4
             We also note, for good measure, that Mr. Cordova’s argument that the district
    court erred in the original sentencing proceeding by basing its guideline range on the
    quantity of methamphetamine actual instead of methamphetamine mixture is without
    merit. The Guidelines themselves foreclose this argument by specifically instructing
    sentencing courts to compare the mixture against the actual and to use whichever quantity
    results in the greater base offense level under the Drug Quantity Tables. See U.S.S.G.
    § 2D1.1(c) n.(B). The cases cited by Mr. Cordova in his objections to defense counsel’s
    Anders brief are not to the contrary.
    
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