                                                                                   FILED
                                                                       United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                           Tenth Circuit

                             FOR THE TENTH CIRCUIT                          January 25, 2017
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 16-2207
                                                  (D.C. No. 5:11-CR-01012-MCA-2)
LUIS OMAR VIELMAS-VALDIVIEZO,                                 (D. N.M.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________


      Appellant Luis Omar Vielmas-Valdiviezo pled guilty to conspiracy and possession

with intent to distribute 50 grams and more of methamphetamine. He was sentenced to

120 months in prison and five years of unsupervised release. He appeals the district

court’s denial of his motion to modify his sentence. After a thorough search of the

record, Mr. Vielmas-Valdiviezo’s counsel could not find a non-frivolous argument that

could support an appeal. She therefore filed a motion to withdraw and a brief pursuant to


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
Anders v. California, 386 U.S. 738 (1967). Also finding no non-frivolous issues and

exercising jurisdiction under 28 U.S.C. § 1291, we grant counsel’s motion to withdraw

and dismiss the appeal.

                                  I.   BACKGROUND

                               A. Conviction and Sentence

       In April 2011, Mr. Vielmas-Valdiviezo was indicted for conspiracy,

possession with intent to distribute methamphetamine, and possession of a firearm in

furtherance of a drug trafficking crime.

       In July 2011, he pled guilty to one count of conspiracy to possess with intent

to distribute 500 grams and more of methamphetamine, in violation of 21 U.S.C.

§ 846 and 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and one count of possession with

intent to distribute 50 grams and more of methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2. The plea agreement included both

parties’ stipulation to a 120-month sentence under Federal Rule of Criminal

Procedure 11(c)(1)(C), which provides that the government may “agree that a

specific sentence . . . is the appropriate disposition of the case, . . . (such a

recommendation or request binds the court once the court accepts the plea

agreement).”

       At the December 2011 sentencing hearing, the district court accepted the plea

agreement and imposed the stipulated sentence of 120 months in prison followed by

five years of unsupervised release. The court noted that it had considered the

sentencing range determined by application of the United States Sentencing

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Guidelines (the “Guidelines”) and believed the sentence imposed reflected the

Guidelines. In calculating the sentencing range, the presentence investigation report

(“PSR”) concluded the total offense level was 35. At the time Mr. Vielmas-

Valdiviezo was sentenced, the base level of his offense at issue was 36.1 After a two-

level enhancement for possession of a deadly weapon and a three-level reduction for

acceptance of responsibility, Mr. Vielmas-Valdiviezo’s total offense level came to

35. His level I criminal history category yielded a Guidelines range of 168 to 210

months of imprisonment.

                           B. Motion to Reduce Sentence

      On September 3, 2015, Mr. Vielmas-Valdiviezo filed a pro se motion to reduce

his sentence under 18 U.S.C. § 3582(c)(2). To be afforded a reduction under

§ 3582(c)(2), a defendant must show that his term of imprisonment was “based on a

sentencing range that has subsequently been lowered by the Sentencing

Commission.” 18 U.S.C. § 3582(c)(2). Mr. Vielmas-Valdiviezo argued that

Amendment 782, which took effect on November 1, 2014, entitled him to a reduction

in his base offense level. Under the amended Guidelines, Mr. Vielmas-Valdiviezo’s

base offense level would be 34 and his total offense level would be 33. Combined



      1
         When Mr. Vielmas-Valdiviezo was sentenced, the Drug Quantity Table under
§ 2D1.1(c) of the Guidelines provided that the base level for an offense that involves
at least 500 grams but less than 1.5 kilograms of methamphetamine (actual) was 36.
Although the amount of methamphetamine involved in Mr. Vielmas-Valdiviezo’s
conduct was 3.1 kilograms, the parties stipulated under the plea agreement that Mr.
Vielmas-Valdiviezo was responsible for only 941.96 grams of pure
methamphetamine.
                                         -3-
with a criminal history category I, the amended advisory Guidelines range would be

135-168 months.

      The government filed a response, arguing Mr. Vielmas-Valdiviezo was

ineligible for a sentence reduction under § 3582(c)(2). On August 4, 2016, the

district court denied Mr. Vielmas-Valdiviezo’s motion on the ground that “the

sentence imposed was based on a stipulated term of imprisonment and not expressly

based on the [Guidelines].” Order, ROA, Vol. I at 43. Mr. Vielmas-Valdiviezo seeks

to appeal that denial.

                                  C. Anders Brief

      On October 17, 2016, Mr. Vielmas-Valdiviezo’s counsel filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), which

      authorizes counsel to request permission to withdraw where counsel
      conscientiously examines a case and determines that any appeal would
      be wholly frivolous. Under Anders, counsel 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) (citations omitted).

      The Anders brief states that counsel sees no non-frivolous arguments to

support Mr. Vielmas-Valdiviezo’s appeal. Counsel also filed a motion to withdraw

from representation. Counsel certified that she provided a copy of the motion and the

accompanying Anders brief to Mr. Vielmas-Valdiviezo. Doc. 1041424. The court


                                        -4-
docket reflects that Mr. Vielmas-Valdiviezo received notice that he had 30 days to

respond to his counsel’s Anders brief. Doc. 1041846. He has not filed a response.

Doc. 10426950. On January 3, 2017, the government notified the court that it will

not file a response brief. Doc. 10433190.

                                 II. DISCUSSION

                               A. Standard of Review

       “The scope of a district court’s authority in a sentencing modification

proceeding under § 3582(c)(2) is a question of law that we review de novo. We

review a denial of a § 3582(c)(2) motion for abuse of discretion.” United States v.

Lucero, 713 F.3d 1024, 1026 (10th Cir.2013) (brackets, citations, and quotations

omitted).

      When counsel submits an Anders brief, we review the record de novo. See

United States v. Leon, 476 F.3d 829, 832 (10th Cir. 2007) (per curiam) (“Under

Anders, we have conducted an independent review and examination.”).

                                B. Legal Background

1. 18 U.S.C. § 3582

      Federal courts generally lack authority to modify a term of imprisonment after

it has been imposed, 18 U.S.C. § 3582(c); Dillon v. United States, 560 U.S. 817, 819

(2010); Lucero, 713 F.3d at 1026, except “in the case of 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). “Under

this court’s well-settled precedent, a sentence is ‘based on a sentencing range’ when

                                         -5-
the court imposes the sentence after calculating the sentencing range derived from the

defendant's offense level and criminal-history category.” United States v. White, 765

F.3d 1240, 1246 (10th Cir. 2014) (brackets, citation, quotations omitted).

       Section 3582(c)(2) prescribes a two-step inquiry to determine whether a

defendant is entitled to a sentence reduction: (1) whether a sentence reduction is

authorized, and (2) whether an authorized reduction is warranted. Id. at 1245 (10th

Cir. 2014). Only the first question, which we review de novo, is at issue here.

2. Amendment 782

       Amendment 782 to the Guidelines went into effect on November 1, 2014.

U.S.S.G. app. C suppl., Amend. 782 at 74 (2015). The amendment allows a

retroactive reduction to “the base offense levels assigned to drug quantities in

U.S.S.G. § 2D1.1, effectively lowering the Guidelines minimum sentences for drug

offenses.” United States v. Kurtz, 819 F.3d 1230, 1234 (10th Cir. 2016) (citation and

quotations omitted).

3. Rule 11(c)(1)(C) and Freeman v. United States

       Rule 11(c)(1)(C) permits the government, in structuring a guilty plea, to “agree

that a specific sentence . . . is the appropriate disposition of the case, . . . (such a

recommendation or request binds the court once the court accepts the plea

agreement).”

       In Freeman v. United States, 564 U.S. 522 (2011), the Supreme Court

addressed whether an initial sentence imposed under a Rule 11(c)(1)(C) plea

agreement is “based on” a Guidelines range. The justices split 4-1-4, with Justice

                                            -6-
Sotomayor writing a concurrence in the judgment that provided the decisive fifth

vote for the plurality.

       The four-justice plurality opinion stated it would “permit the district court to

revisit a prior sentence to whatever extent the sentencing range in question was a

relevant part of the analytic framework the judge used to determine the sentence or to

approve the agreement.” Id. at 530. The dissenting justices would have adopted a

categorical rule that § 3852(c)(2) does not permit modification of a sentence imposed

under a Rule 11(c)(1)(C) plea agreement. Id. at 544 (Roberts, C.J., dissenting).

       Justice Sotomayor said that a defendant who had entered a plea agreement under

Rule 11(c)(1)(C) is eligible for sentence reduction under § 3582(c) only “when the [plea]

agreement itself employs the particular Guidelines sentencing range applicable to the

charged offenses in establishing the term of imprisonment.” Id. at 540 (Sotomayor, J.,

concurring). Although the Guidelines instruct district courts to use them as a “yardstick”

in deciding whether to accept a plea agreement, that does not mean that the sentence is

“based on” a particular Guidelines range. Id. at 536.

                                       C. Analysis

       In United States v. Graham, 704 F.3d 1275 (10th Cir. 2013), we said, “Every

federal appellate court to consider the matter has reached the same conclusion, and we

agree: Justice Sotomayor's concurrence [in Freeman] is the narrowest grounds of

decision and represents the Court’s holding.” Id. at 1278. We therefore apply the rule

stated in Justice Sotomayor’s concurrence.



                                           -7-
      Neither counsel’s Anders brief nor our own review of the record identifies any

non-frivolous basis for appeal. Mr. Vielmas-Valdiviezo’s appeal would fail under

Justice Sotomayor’s controlling concurrence because his plea agreement did not

“employ[] the particular Guidelines sentencing range applicable to the charged offenses”

in determining his sentence. Instead, the plea agreement specified a sentence of 120

months—48 months below the low-end of the applicable Guidelines range—and did

not mention the Guidelines.

      Having “conduct[ed] a full examination of the record,” we can discern no non-

frivolous ground for appealing the denial of Mr. Vielmas-Valdiviezo’s motion to

reduce his sentence. See Calderon, 428 F.3d at 930. We therefore grant counsel’s

motion to withdraw and dismiss this appeal.

                                 III. CONCLUSION

      The district court lacks authority under § 3582(c)(2) to reduce Mr. Vielmas-

Valdiviezo’s sentence. Accordingly, we grant counsel’s motion to withdraw and

dismiss this appeal.


                                            ENTERED FOR THE COURT,



                                            Scott M. Matheson, Jr.
                                            Circuit Judge




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