                                                                                 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. 15-2139
v.                                                (D.C. No. 2:92-CR-00038-RB-2)
                                                         (D. New Mexico)
OSCAR LUIS CHACON,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before GORSUCH, BALDOCK, and McHUGH, Circuit Judges.
                  _________________________________

      In 1992, Oscar Luis Chacon was convicted by a jury of conspiracy to possess

with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C.

§§ 841 & 846. The Presentence Investigation Report (PSR) stated that Mr. Chacon’s

offense conduct involved 1,156.1 kilograms of cocaine, which placed him in a base

offense level of 40 under the Drug Quantity Table in the then-applicable United

States Sentencing Guidelines. U.S.S.G § 2D1.1(c) (1988). The PSR also

recommended a two-level enhancement for Mr. Chacon’s role in the offense, and

      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
another two-level enhancement for his obstruction of justice. This resulted in an

adjusted offense level of 44 and a Guideline sentencing range of life. Id. The district

court adopted the PSR recommendations and sentenced Mr. Chacon to life in prison

on September 30, 1992.

      On August 12, 1996, Mr. Chacon filed a motion pursuant to 18 U.S.C.

§ 3582(c)(2) for reduction of his sentence based on Amendment 505 of the

Sentencing Guidelines. Amendment 505 modified the Drug Quantity Table under

§ 2D1.1 and established a lower offense level than that applicable when Mr. Chacon

was initially sentenced. See U.S.S.G § 2D1.1(c) (Drug Quantity table) (1996).

Specifically, under Amendment 505, an offense quantity of 150 kilograms or greater

would result in a base offense level of 38. Id. Thus, at an offense quantity of 1,156.1

kilograms, Mr. Chacon’s base offense level would be 38, rather than the base offense

level of 40 imposed under the Drug Quantity Table applicable at his initial

sentencing. Id. When combined with the two-level enhancement for his role in the

offense and the two-level enhancement for obstruction of justice, this would result in

an adjusted offense level of 42, rather than the adjusted offense level of 44 used at

his 1992 sentencing.

      The district court agreed that Amendment 505 should be applied retroactively

to Mr. Chacon. It therefore granted Mr. Chacon’s motion on December 24, 1996, and

reduced his sentence from life to 360 months.

      On November 14, 2014, Mr. Chacon filed a new motion under 18 U.S.C.

§ 3582(c)(2) to reduce his sentence based on Amendment 782 to § 2D1.1, which

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further lowered the base levels for certain quantities in the Drug Quantity Table.

U.S.S.G. § 2D1.1(c) (Drug Quantity Table) (2014). The district court denied the

motion because Mr. Chacon’s offense level would remain the same under the newly

amended Guidelines. In particular, the newly revised Drug Quantity Table provided

that 450 kilograms or more of cocaine would result in a base offense level of 38. Id.

Because Mr. Chacon’s offense quantity of 1,156.1 kilograms of cocaine is greater

than 450 kilograms, his base offense level would remain at 38 under Amendment

782. And when combined with his enhancements, Mr. Chacon’s adjusted base level

would be 42 under Amendment 782—the same adjusted offense level used by the

district court to modify his sentence in 1996. Thus, the district court concluded that

even if Amendment 782 were applied retroactively to Mr. Chacon, it would not affect

his sentence.

      Mr. Chacon filed a timely appeal from the district court’s denial of his latest

motion for a reduction in his sentence. But Mr. Chacon’s attorney has filed a brief

with this Court under the guidance of Anders v. California, 386 U.S. 738 (1967). In

Anders, the Supreme Court held that a defense lawyer may seek permission to

withdraw from an appeal if, “after a conscientious examination” of the case, she finds

the appeal to be “wholly frivolous.” Id. at 744. Any request to withdraw, however,

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. If the

court, after a “full examination of all the proceedings,” concludes that the appeal is,

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in fact, wholly frivolous, it may grant counsel’s motion to withdraw and dismiss the

appeal. Id.

      Counsel for Mr. Chacon has complied with these procedures here. Counsel

filed an Anders brief with this Court explaining that after “a thorough review of the

file and records in this case,” she found the appeal to be without merit. Accordingly,

she requested permission to withdraw but noted “she will continue to assist Mr.

Chacon in his efforts to receive a grant of clemency.” And although Mr. Chacon has

been afforded an opportunity to raise any points he considers non-frivolous, he has

not done so.

      After conducting our own review of the record, we agree that Mr. Chacon has

no meritorious grounds for appeal. For the reason explained above, Amendment 782

to the Sentencing Guidelines does not provide any support for a further reduction in

Mr. Chacon’s sentence.

      The motion to withdraw is granted and this appeal is dismissed.

                                           Entered for the Court


                                           Carolyn B. McHugh
                                           Circuit Judge




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