                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                December 7, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                          FOR THE TENTH CIRCUIT


 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                        No. 08-1382
 v.                                          (D.C. No. 1:04-CR-00514-EWN-1)
                                                         (D. Colo.)
 DEON ROLLEN,

             Defendant-Appellant.


                          ORDER AND JUDGMENT *


Before LUCERO, BALDOCK, and HOLMES, Circuit Judges.


      Deon Rollen appeals the district court’s denial of his motion for a sentence

reduction under 18 U.S.C. § 3582(c)(2). Rollen’s appointed counsel in this

appeal filed an Anders brief, seeking permission to withdraw as counsel because

the appeal is “wholly frivolous.” See Anders v. California, 386 U.S. 738, 744

(1967). Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291,

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


      *
        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); 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not binding precedent, except under the doctrines of law of the case, res judicata,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

      In January 2005, a grand jury indicted thirty-one defendants on 137 counts

related to the sale and distribution of illicit drugs. The indictment charged Rollen

with nineteen crack-cocaine-related counts. On the eve of trial, he pled guilty to

all nineteen. In its Memorandum of Sentencing Hearing and Report of Statement

of Reasons (“Sentencing Memorandum”), the district court found that Rollen’s

base offense level was thirty-eight, which the court reduced to thirty-six in light

of Rollen’s acceptance of responsibility. Combining this offense level with a

criminal history category of IV, the court calculated Rollen’s sentencing range as

235 to 293 months. The district court sentenced Rollen to 264 months’

imprisonment. This court affirmed Rollen’s sentence on appeal. United States v.

Rollen, 239 F. App’x 451 (10th Cir. 2007).

      On June 12, 2008, Rollen filed a motion to reduce his sentence under

18 U.S.C. § 3582(c)(2), which permits a sentence reduction “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.” Rollen contended his sentencing range had been lowered by an

amendment to the United States Sentencing Guidelines (“USSG”). The district

court denied Rollen’s motion, concluding he was ineligible for a sentence

reduction because the amendment on which he relied did not have the effect of

lowering his applicable USSG range.

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                                        II

       Rollen argued to the district court that Amendment 706 to the USSG

qualified him for a sentence reduction. Amendment 706 “generally adjust[ed]

downward by two levels the base offense level assigned to quantities of crack

cocaine.” United States v. Sharkey, 543 F.3d 1236, 1237 (10th Cir. 2008). It

took effect in November 2007, but was subsequently made retroactive. See id.

Prior to Amendment 706, a defendant found responsible for 1.5 kilograms or more

of crack cocaine was assigned a base offense level of thirty-eight. See USSG

§ 2D1.1(c)(1) (Drug Quantity Table) (2006). But Amendment 706 revised

§ 2D1.1(c)(1) to apply base offense level thirty-eight only to defendants

responsible for 4.5 kilograms or more of crack cocaine. USSG app. C, amend.

706.

       However, merely having 1.5 kilograms or more of crack cocaine attributed

to him during sentencing does not entitle a prisoner to relief. Section 3582(c)(2)

provides that any sentence reduction must be “consistent with applicable policy

statements issued by the Sentencing Commission.” The Sentencing Commission

has issued a policy statement precluding a sentence reduction where an

amendment “does not have the effect of lowering the defendant’s applicable

guideline range.” USSG § 1B1.10(a)(2)(B). Thus, a prisoner may not obtain a

reduction in sentence when he was responsible for 4.5 kilograms or more of crack

cocaine, because a defendant responsible for 4.5 kilograms or more of crack

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cocaine would still receive a base offense level of thirty-eight under the amended

guidelines.

      Rollen argued to the district court that the sentencing court found him

responsible for less than 4.5 kilograms of crack cocaine. However, the district

court determined that twelve kilograms of crack cocaine was attributed to Rollen

during sentencing. Consequently, the district court denied Rollen’s motion.

                                        III

      This court reviews a district court’s decision to deny a sentence reduction

under § 3582(c)(2) for abuse of discretion. Sharkey, 543 F.3d at 1238. “An

abuse of discretion occurs when the district court bases its ruling on an erroneous

conclusion of law or relies on clearly erroneous fact findings.” Kiowa Indian

Tribe v. Hoover, 150 F.3d 1163, 1165 (10th Cir. 1998).

      On appeal, Rollen contends that the district court erred in its reading of the

sentencing court’s drug quantity determination. In his Anders brief, Rollen’s

appellate counsel contends this issue is frivolous. Rollen has chosen not to offer

additional argument to the court.

      In Anders, the Supreme Court directed that “if counsel finds his case to be

wholly frivolous, after a conscientious examination of it, he should so advise the

court and request permission to withdraw.” 386 U.S. at 744. Counsel must

submit to the court and his or her client a brief addressing “anything in the record

that might arguably support the appeal.” Id. When counsel submits an Anders

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brief accompanied by a motion to withdraw, we “conduct a full examination of

the record to determine whether defendant’s claims are wholly frivolous.” United

States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). If we concur in counsel’s

evaluation of the case, we may grant the request to withdraw and dismiss the

appeal. See Anders, 386 U.S. at 744.

      Based on our full examination of the record, Rollen’s argument that the

district court found him responsible for less than 4.5 kilograms of crack cocaine

is frivolous. In its Sentencing Memorandum, the sentencing court considered the

quantity of crack cocaine attributable to him and unambiguously stated that

amount was twelve kilograms. It specifically “conclude[d] that in excess of

eleven kilograms of crack was involved in 2003,” and also found Rollen

responsible for at least one kilogram of crack cocaine during a period in the fall

of 2004. We agree with counsel’s assessment that no meritorious issue exists on

appeal.

                                         IV

      We therefore DISMISS Rollen’s appeal and GRANT counsel’s motion for

leave to withdraw.

                                               ENTERED FOR THE COURT


                                               Carlos F. Lucero
                                               Circuit Judge




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