FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT August 11, 2016
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 16-7012
v. (D.C. No. 6:04-00011-JHP-5)
(E.D. Okla.)
DANNY JAMES GOLDEN,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
Mr. Danny James Golden was convicted of conspiracy to distribute
and distribution of methamphetamine. He now appeals the district court’s
denial of a motion for sentence reduction under 18 U.S.C. § 3582. Mr.
Golden’s counsel filed a brief invoking Anders v. California, 386 U.S. 738
(1967) and moving to withdraw based on the absence of any reasonable
*
Oral argument would not be helpful in this appeal. As a result, we
are deciding the appeal based on the briefs. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
grounds for appeal. We conclude that any appellate challenges would be
frivolous. Thus, we grant the motion to withdraw and dismiss the appeal.
I. Anders v. California
Under Anders, attorneys can seek leave to withdraw from an appeal
when they conscientiously examine a case and determine that an appeal
would be frivolous. 386 U.S. at 744. To obtain leave to withdraw, an
attorney must
submit a brief to the client and the appellate court indicating
any potential appealable issues based on the record. The client
may then choose to submit arguments to the court. The [c]ourt
must then conduct a 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.
United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005).
Mr. Golden’s counsel filed a brief, moving to withdraw. We base our
decision on the brief filed by defense counsel and the record on appeal. In
reviewing the record, we engage in de novo review. See United States v.
Kurtz, 819 F.3d 1230, 1233 (10th Cir. 2016) (“When counsel submits an
Anders brief, our review of the record is de novo.”).
II. Amendment to the Sentencing Guidelines
Mr. Golden moved under § 3582(c)(2) for a sentence reduction on the
ground that the sentencing guideline range had been lowered by the
Sentencing Commission. But the amendment did not affect Mr. Golden’s
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guideline range. In 2004, 1.5 kilograms of actual methamphetamine would
trigger a base-offense level of 38. Through the amendment, the Sentencing
Commission increased the quantity that would trigger a base-offense level
of 38. But even with the increased threshold, Mr. Golden would still be
tagged with a base-offense level of 38. As a result, he cannot reasonably
challenge the sentence based on the amendment to the guidelines.
III. Challenge to the Guideline Range
Mr. Golden could also argue that his guideline range was incorrectly
calculated based on facts not charged in the indictment or admitted in the
plea. But this issue is not cognizable under § 3582(c)(2). This section
simply authorizes reduction of a sentence based on an amendment to the
guidelines, not correction of a sentence that was improper from the outset.
United States v. Torres-Aquino, 334 F.3d 930, 941 (10th Cir.2003).
IV. Conclusion
We agree with Mr. Golden’s counsel that there are no reasonable
grounds for appeal. Thus, we grant counsel’s motion to withdraw and
dismiss the appeal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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