FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 12, 2016
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-2196
(D.C. No. 2:95-CR-00104-LH-3)
RAMON MONTAÑO, (D. N.M.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
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Ramon Montaño appeals the district court’s dismissal of his motion for a
sentence reduction under 18 U.S.C. § 3582(c)(2) for lack of jurisdiction. His counsel
moves for leave to withdraw in a brief filed pursuant to Anders v. California, 386
U.S. 738 (1967). Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a), we dismiss the 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I
Montaño was convicted by a jury of possession with intent to distribute
marijuana and methamphetamine, and engagement in a continuing criminal enterprise
(“CCE”). His presentence report (“PSR”) recommended a base offense level of 42:
the offense involved 447,720 kilograms of marijuana equivalent resulting in a base
offense level of 38 under the then applicable version of U.S.S.G. § 2D1.1(c), and the
conviction for engagement in a CCE increased the offense level by four. The PSR
calculated a criminal history category of I and recommended a Guidelines range of
360 months to life imprisonment. The district court adopted the PSR and sentenced
Montaño to 360 months’ imprisonment.
In 2014, the United States Sentencing Commission promulgated Guidelines
Amendment 782, which generally lowered the offense level of individuals sentenced
under § 2D1.1(c) by two. U.S.S.G. Manual, Supp. to App. C, amend. 782. Montaño
filed a motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). The district court
dismissed the motion for lack of jurisdiction, and Montaño timely appealed.
II
If an attorney concludes that any appeal would be frivolous after
conscientiously examining the case, counsel may so advise the court and request
permission to withdraw. Anders, 386 U.S. at 744. Counsel must submit a brief
highlighting any potentially appealable issues and submit the brief to the defendant,
who may then submit a pro se brief. Id. If the court determines that the appeal is in
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fact frivolous upon careful examination of the record, it may grant the request to
withdraw and dismiss the appeal. Id.
Counsel raises a number of substantive arguments, but argues that the district
court lacked jurisdiction to consider them. “Federal courts generally lack jurisdiction
to modify a term of imprisonment once it has been imposed,” United States v.
Graham, 704 F.3d 1275, 1277 (10th Cir. 2013), and may only modify a defendant’s
sentence when Congress expressly authorizes it, § 3582(c); see also Dillon v. United
States, 560 U.S. 817, 819-20 (2010). Congress has authorized courts to modify a
sentence for “a defendant who has been sentenced to a term of imprisonment based
on a sentencing range that has subsequently been lowered by the Sentencing
Commission.” § 3582(c)(2). We review “de novo the scope of a district court’s
authority to resentence a defendant in a § 3582(c)(2) proceeding.” United States v.
Gay, 771 F.3d 681, 685 (10th Cir. 2014).
Although Amendment 782 reduced most of the quantity-based offense levels
on the Drug Quantity Table, it retained a base offense level of 38 for offenses
involving 90,000 kilograms or more of marijuana. U.S.S.G. § 2D1.1(c). Because the
quantity of drugs involved in Montaño’s offense—approximately 447,720 kilograms
of marijuana equivalent—is well above the amended threshold of 90,000 kilograms
for a base offense level of 38, his base offense level and Guidelines range are
unchanged by Amendment 782. Accordingly, he was not eligible for a sentence
reduction under § 3582(c). See § 1B1.10(a)(2)(B) (a defendant is not eligible for a
sentence reduction when the amendment “does not have the effect of lowering the
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defendant’s applicable guideline range”). And because a district court does not have
jurisdiction over a motion if “a change in the guidelines would not lower the offense
level,” United States v. White, 765 F.3d 1240 (10th Cir. 2014), the district court
properly concluded it did not have jurisdiction. Id. at 1246. Any argument to the
contrary would be frivolous.
III
Counsel is correct that the district court lacked jurisdiction to decide
Montaño’s motion. We GRANT counsel’s request to withdraw and DISMISS the
appeal.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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