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

                               TENTH CIRCUIT                     April 19, 2016

                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
    UNITED STATES OF AMERICA,
               Plaintiff - Appellee,
                                                    No. 15-2162
    v.                                           (D. New Mexico)
                                          (D.C. No. 1:10-CR-00332-JAP-1)
    MIGUEL DIAZ-GOMEZ,
               Defendant -Appellant.



                          ORDER AND JUDGMENT *


Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.


         Mr. Miguel Diaz-Gomez appealed from the district court’s denial of a

motion for sentence reduction. See 18 U.S.C. § 3582(c)(2). Mr. Diaz-

Gomez’s counsel filed a brief invoking Anders v. California, 386 U.S 738

(1967), and moving to withdraw based on the absence of any valid grounds




*
      Oral argument would not be helpful in this appeal. As a result, we
are deciding the appeal 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).
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 v. California, attorneys can seek leave to withdraw

from an appeal when they conscientiously examine a case and determine

that an appeal would be frivolous. Id. 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. Diaz-Gomez’s counsel filed a brief, and Mr. Diaz-Gomez

bypassed the opportunity to file his own brief. In these circumstances, we

base our decision on (1) the brief filed by defense counsel and (2) the

record on appeal.

II.   Basis for Mr. Diaz-Gomez’s Sentence

      Mr. Diaz-Gomez pleaded guilty to a drug conspiracy offense and was

sentenced to ten years in prison, the mandatory minimum under 21 U.S.C.

§ 841(b)(1)(A). The United States Probation Office initially calculated Mr.

Diaz-Gomez’s sentencing guideline range between 97 and 121 months


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based on his total adjusted offense level and criminal history category. But

the probation office modified the range upward to account for the

statutorily required minimum of ten years. See U.S.S.G. § 5G1.1. The

district court adopted the modified guideline range of 120 to 121 months

and sentenced Mr. Diaz-Gomez to 120 months.

III.   Mr. Diaz-Gomez’s Response to the Guideline Amendment

       In 2014, the Sentencing Commission adopted a retroactive guideline

amendment, retroactively reducing the offense levels relating to specified

quantities of controlled substances. U.S.S.G. app. C. suppl., amend. 782

(2014). Based on this amendment, Mr. Diaz-Gomez moved for a sentence

reduction to 78 months. The probation office concluded that the guideline

sentence would remain at 120 months because of the statutory mandatory

minimum sentence. See U.S.S.G. § 5G1.1 (“Where a statutorily required

minimum sentence is greater than the maximum of the applicable guideline

range, the statutorily required minimum sentence shall be the guideline

sentence.”).

IV.    Mr. Diaz-Gomez’s Ineligibility for Relief Under 18 U.S.C.
       § 3582(c)(2)

       Section 3582(c)(2) provides “a narrow exception to the rule of

finality” that “applies only to a limited class of prisoners—namely, those

whose sentence was based on a sentencing range subsequently lowered by

the [Sentencing] Commission.” Dillon v. United States, 560 U.S. 817, 825-


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827 (2010). This exception does not apply when the defendant is sentenced

to the minimum permitted under a statute. United States v. Smartt, 129

F.3d 539, 542 (10th Cir. 1997).

     Mr. Diaz-Gomez was sentenced to 120 months in prison because that

was the mandatory minimum allowed under federal law. 1 Thus, he was not

eligible for a sentence reduction under § 3582(c). In these circumstances,

Mr. Diaz-Gomez lacks any reasonable grounds to appeal the sentence.

V.   Conclusion

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


                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




1
       At sentencing, the district court adopted the presentence report
“without change.” Record on Appeal at 72. The probation report stated that
the offense carried a mandatory minimum of ten years in prison. Id. at 69.
The district court’s statement of reasons incorrectly checked the box
stating: “No count of conviction carries a mandatory minimum sentence.”
Id. at 72. But as a matter of law, the sentence carried a mandatory
minimum of ten years in prison. Thus, the inadvertent checkmark on the
“Statement of Reasons” does not affect the outcome.
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