United States v. Cordova

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.
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ORDER AND JUDGMENT*
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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.
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*
This order and judgment is not binding precedent, except under the doctrines of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.

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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.)

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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.”

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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.

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 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

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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

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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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