                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                February 13, 2017
                                   TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 16-2153
 v.
                                              (D.C. No. 2:12-CR-02619-RB-1)
                                                         (D.N.M.)
 GILDARDO MAJALCA-AGUILAR,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, KELLY, and MATHESON, Circuit Judges.



      After he pleaded guilty to various drug crimes, Gildardo Majalca-Aguilar

was sentenced to 168 months in prison, a sentence he now seeks to appeal. His

attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

under which a defendant’s lawyer may seek permission to withdraw from an

appeal if, “after a conscientious examination” of the record and the law, she finds



      *
         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 This order is not binding
precedent except under the doctrines of law of the case, res judicata and collateral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.
the appeal “wholly frivolous.” Id. at 744. The attorney must, however, “submit a

brief to the client and the appellate court indicating any potential appealable

issues.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). The

client may in turn submit his own arguments for the court’s consideration, in

which case the court must “conduct a full examination of the record to determine

whether [the] defendant’s claims are wholly frivolous.” Id. If they are, the court

may grant counsel’s motion to withdraw and dismiss the appeal. Id.

      These conditions are satisfied here. Majalca-Aguilar’s attorney explains in

her Anders brief that, after a careful examination of the record, she can discern no

potential points of appeal. Having conducted our own independent review of the

record, we agree with this assessment.

      Majalca-Aguilar’s 168-month prison term fell below the 210- to 262-month

range the Guidelines recommended at the time of his original sentencing. This

was because of a downward variance the court granted based on its finding that a

sentence enhancement imposed on Majalca-Aguilar, while supported by the

record, was not in the contemplation of the parties at the time of their plea

agreement. Majalca-Aguilar then moved for a further sentence reduction pursuant

to 18 U.S.C. § 3582(c)(2), which the district court denied.

      We discern no non-frivolous grounds to appeal this ruling. Section

3582(c)(2) allows a district court to modify a defendant’s original sentence if it

was “based on a sentencing range that has subsequently been lowered by the

                                         -2-
Sentencing Commission.” And, to be sure, Majalca-Aguilar’s applicable

sentencing range was lowered by the Commission, decreasing the range’s

minimum from 210 months to 168 months. But the statute does not stop there. It

goes on to add that a district court may modify a defendant’s original sentence

only “if such a reduction is consistent with applicable policy statements issued by

the Sentencing Commission.” And the relevant policy statement here, USSG

§ 1B1.10(b)(2)(A), expressly provides that (with one exception not relevant here)

a court “shall not” reduce a defendant’s sentence below the amended guidelines

range. Given this binding guidance and given the fact that Majalca-Aguilar’s

original sentence was already at the minimum of the amended range (168

months), the statute offers no prospect of relief. He is, just as the district court

held, ineligible for any further sentence reduction.

      Defense counsel’s motion to withdraw is GRANTED. Majalca-Aguilar’s

motion to release present representation is DENIED, and this appeal is

DISMISSED.

                                         ENTERED FOR THE COURT

                                         Timothy M. Tymkovich
                                         Chief Judge




                                          -3-
