United States v. Perez , 642 F. App'x 855 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 3, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 15-2150
v. (D.C. No. 2:04-CR-01308-RB-1)
(D. New Mexico)
CARLOS PEREZ,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, GORSUCH, and McHUGH, Circuit Judges.
_________________________________
This matter is before us on Carlos Perez’s appeal of the denial of his motion
under 18 U.S.C. § 3582(c)(2) for a reduction of his sentence based on Amendment
782 to § 2D1.1 of the United States Sentencing Guidelines (Guidelines). Also before
us is a brief filed by Mr. Perez’s counsel pursuant to Anders v. California, 386 U.S.
738 (1967), seeking permission to withdraw. We dismiss Mr. Perez’s appeal and
grant counsel’s motion to withdraw.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
BACKGROUND
On November 17, 2004, Carlos Perez entered into a Plea Agreement, under
which he agreed to plead guilty to six drug-related charges:
Count 1: Title 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2(distribution of 5 grams and more of methamphetamine, and aiding and
abetting); Count 2: Title 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 18 U.S.C.
§ 2 (distribution of less than 5 grams of methamphetamine, and aiding and
abetting); Count 3: Title 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D) and 18 U.S.C.
§ 2 (distribution of 50 kilograms of marijuana, and aiding and abetting); Count
4: Title 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2 (possession
with intent to distribute 50 grams and more of methamphetamine, and aiding
and abetting); Count 5: Title 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D) and 18
U.S.C. § 2 (possession with intent to distribute less than 50 kilograms
marijuana, and aiding and abetting); and Count 6: 18 U.S.C. §§ 922(g)(1) and
924(a)(2) (felon in possession of a firearm).
In exchange for Mr. Perez’s guilty plea, the government agreed to support a
three-level reduction in Mr. Perez’s base offense level, as calculated under the then-
applicable Guidelines, for his acceptance of responsibility. U.S.S.G. §§ 3E1.1(a) &
(b) (2004). The government also stipulated that Mr. Perez should be sentenced at the
low end of the Guidelines sentencing range. By executing the Plea Agreement, Mr.
Perez acknowledged that the maximum penalty the district court could impose was
life imprisonment and the minimum sentence available was ten years.
After Mr. Perez executed the Plea Agreement, the United States Probation
Office prepared a Presentence Investigation Report (PSR), which calculated Mr.
Perez’s Guidelines sentencing range as a guide for the district court. Of significance
here, the PSR indicated that Mr. Perez fell within the career-offender provision of the
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Guidelines. U.S.S.G § 4B1.1.1 This classification resulted in a higher offense level
and criminal history category than if Mr. Perez had committed the same current
offense, but did not fall within the definition of a career offender. In the absence of
the career-offender provision, the quantity of drugs involved in Mr. Perez’s current
offenses would have set the base offense level at 32. To this would have been applied
a two-level increase for possession of firearms and a three-level decrease for
acceptance of responsibility, resulting in an adjusted offense level of 31. And because
Mr. Perez had nine criminal history points, the Guidelines would have placed him in
criminal history category IV, but for his career offender status. Under this scenario,
Mr. Perez’s Guidelines sentencing range would have been 151 to 188 months.
U.S.S.G. Sentencing Table.
But because Mr. Perez was a career offender, the Guidelines set his base
offense level at 37. U.S.S.G. § 4B1.1. After applying a three-level reduction based on
Mr. Perez’s acceptance of responsibility, the PSR calculated his total offense level at
34. And because the career-offense level was greater than the otherwise applicable
level, the PSR assigned Mr. Perez a criminal history category of VI. U.S.S.G.
§ 4B1.1(b). Ultimately, the PSR calculated Mr. Perez’s Guidelines sentencing range
as 262 to 327 months.
At Sentencing on January 4, 2006, the government indicated that neither it nor
counsel for Mr. Perez anticipated the impact of the career offender provision on Mr.
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The PSR stated that the current offense was a qualifying felony and Mr.
Perez had previously been convicted of at least two prior qualifying felonies—
Burglary and Distribution of Methamphetamine.
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Perez’s Guidelines sentencing range. Accordingly, the government agreed to dismiss
Count 4 of the indictment in an effort to place him in a Guidelines sentencing range
of 188 to 235 months, despite his career offender status. U.S.S.G. Sentencing Table.
The government also urged the district court to sentence Mr. Perez at the lowest end
of that range, 188 months.
The district court imposed the requested sentence, but did so by a different
method. The district court first calculated Mr. Perez’s Guidelines sentencing range at
262 to 327 months, due to his career offender status. But the court then departed
three levels from the Guidelines offense level of 34 to 31, applied the career offender
criminal history level of VI, and recalculated Mr. Perez’s Guidelines sentencing
range at 188 to 235 months. Finally, the district court sentenced Mr. Perez to 188
months, the lowest available sentence after the three-level departure. Mr. Perez did
not appeal his sentence.
On November, 24, 2014, Mr. Perez filed a motion pursuant to 18 U.S.C.
§ 3582(c)(2) for reduction of his sentence based on Amendment 782 to § 2D1.1 of
the Guidelines. Amendment 782 reduced the base levels for certain quantities in the
Drug Quantity Table of the Guidelines. U.S.S.G. § 2D1.1(c) (Drug Quantity Table)
(2014). Mr. Perez argued the district court’s three-level departure amounted to a
decision to ignore his career offender status and the sentencing range applicable
under § 4B1.1, and to instead sentence him based on the Drug Quantity Table in
§ 2D1.1. He further argued that a retroactive reduction in the base levels assigned to
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the drug quantities in § 2D1.1 should reduce his sentence accordingly. The district
court summarily denied Mr. Perez’s motion.
Mr. Perez filed this appeal, claiming the district court erred in refusing to
reduce his sentence based on Amendment 782. Mr. Perez’s counsel, however, has
filed a brief with this court, seeking relief under the Supreme Court’s decision in
Anders v. California, 386 U.S. 738 (1967). The Supreme Court in Anders allowed
defense counsel to seek permission to withdraw from an appeal if, “after a
conscientious examination” of the case, counsel concludes the appeal is “wholly
frivolous.” Id. at 744. But the request to withdraw must be accompanied by a “brief
referring to anything in the record that might arguably support the appeal.” Id. And
the attorney must also furnish a copy of the Anders brief to the client, so that he can
“raise any points that he chooses.” Id. Upon defense counsel’s compliance with the
requirements of Anders, this court must undertake a “full examination of all the
proceedings.” Id. If after that review, we conclude the appeal is, in fact, wholly
frivolous, we may grant counsel’s motion to withdraw and dismiss the appeal. Id.Counsel for Mr. Perez has complied with the Anders procedures here. Counsel
filed an Anders brief with this court, seeking permission to withdraw and explaining
that after “a thorough review of the file and records in this case,” she has determined
there are no meritorious issues for appeal. Counsel has also provided Mr. Perez a
copy of the Anders brief and afforded him an opportunity to raise any points he
considers non-frivolous. Mr. Perez has availed himself of that opportunity by filing a
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response to counsel’s Anders brief with this court. After conducting our own review
of the record, we agree that Mr. Perez has no meritorious grounds for appeal.
DISCUSSION
Mr. Perez’s argument is foreclosed by our decision in United States v. Darton,
595 F.3d 1191 (10th Cir. 2010), which dealt with virtually identical facts as present
here. The parties in Darton, like the parties here, entered into a plea agreement but
failed to consider the defendant’s career offender status until the PSR calculated his
offense level and criminal history category higher than anticipated. Id. at 1192-93.
Thus, instead of the sentencing range of 84 to 105 months assumed by the parties,
Mr. Darton’s applicable range was actually 151 to 188 months’ imprisonment due to
the his career offender status. Id. Over Mr. Darton’s objections, the district court
agreed with the PSR that Mr. Darton was a career offender and calculated his
Guidelines sentencing range accordingly. Id. But just like the sentencing court here,
the court in Darton departed downward from that sentencing range. Id. Specifically,
it reduced Mr. Darton’s offense level from 29 to 25 and his criminal history category
from VI to IV. This resulted in a sentencing range of 155 to 188 months’
imprisonment and an ultimate sentence of 96 months.2 Id. at 93.
Subsequently, the United States Sentencing Commission promulgated
Amendment 706, which like Amendment 782 at issue here, reduced the base offense
levels for certain drug quantities in the Guidelines. U.S.S.G. § 2D1.1(c) (Drug
2
Here, the sentencing court departed downward by reducing Mr. Perez’s
offense level, but left his criminal history category at VI, as dictated by the career
criminal provision. U.S.S.G. § 4B1.1(b).
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Quantity Table). Relying on Amendment 706, Mr. Darton filed a motion to reduce
his sentence under 18 U.S.C. § 3582(c)(2). Darton, 595 F.3d at 1193. The district
court denied the motion and the defendant appealed. This court affirmed.
In Darton, we explained that a reduction in sentence is available under
§ 3582(c)(2) only if the defendant’s sentence is based on a sentencing range that has
subsequently been lowered by a retroactive amendment to the Guidelines. Id. at 1194.
And we reiterated that a sentence is based on a sentencing range “when the court
imposes sentence after calculating the sentencing range derived from the defendant’s
offense level and criminal-history category.” Id. at 1194–95 (quoting United States v.
Dryden, 563 F.3d 1168, 1170–71 (10th Cir. 2009)).
Mr. Darton argued that his sentence was calculated based on the offense Drug
Quantity Table under § 2D1.1, and that he therefore was entitled to the benefit of
Amendment 706. Id. at 1194. We rejected that argument, reasoning that the
Guidelines define a departure under §§ 4A1.3 and 5K2.0 as “a sentence outside the
applicable guideline range.” Id. (quoting U.S.S.G. § 1B1.1 cmt. N. 1(E)). We
explained that a Guidelines range to which the court departs cannot have been the
Guidelines range on which the court based its calculation of the applicable sentencing
range. Id. Accordingly, we concluded Mr. Darton’s sentence was based on the career
offender provision in § 4B1.1, not on § 2D1.1. Id. at 1195. Because Amendment 706
“would not lower the offense level or criminal-history category” imposed under
§ 4B1.1, we held that Mr. Darton “cannot say that he ‘has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered by the
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Sentencing Commission.’” Id. (quoting Dryden, 563 F.3d at 1171). And therefore, we
concluded the district court lacked authority to reduce Mr. Darton’s sentence. Id.The same result is mandated here. The district court calculated Mr. Perez’s
sentence under the career offender provision in § 4B1.1 and arrived at a Guidelines
sentencing range of 262 to 327 months. Only after making the “Court Determination
of Advisory Guideline Range (Before Departures),” did the court expressly depart
from that sentencing range and arrive at a new range of 188 to 235 months’
imprisonment. Under Darton, there is no doubt that Mr. Perez’s sentence was based
on the career-offender provision, not the Drug Quantity Table in § 2D1.1. See
Darton, 595 F.3d at 1195–96. And because Amendment 782 did not impact the
career-offender provision, Mr. Perez has not been sentenced based on a sentencing
range that has since been lowered. Id. at 1195.
CONCLUSION
The district court lacked authority to reduce Mr. Perez’s sentence under 18
U.S.C. § 3582(c)(2) because Amendment 782 did not impact his sentence. Mr. Perez
has failed to raise any non-frivolous arguments challenging that decision on appeal.
The motion to withdraw is granted and this appeal is dismissed.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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