                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                         UNITED STATES COURT OF APPEALS                  June 26, 2012
                                                                     Elisabeth A. Shumaker
                                    TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 11-2236
 DARYL WAYNE WILKERSON, a/k/a                      (D.C. No. 2:00-CR-00557-LH-2)
 Daryl Wayne Haynes,                                          (D. N.M.)

           Defendant-Appellant.



                                 ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore,

submitted without oral argument.

       Daryl Wayne Wilkerson appeals from the district court’s order dismissing for lack

of jurisdiction his Motion to Reduce Sentence dated November 1, 2011. Wilkerson was


       *
         This order and judgment is not binding precedent, except under the doctrines of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.
convicted of aiding and abetting the possession with intent to distribute of five grams or

more of a substance containing cocaine base, or crack cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2. As a result of his prior convictions for

cocaine trafficking and voluntary manslaughter, he was sentenced as a career offender

under United States Sentencing Guidelines (U.S.S.G. or Guidelines) § 4B1.1 to a term of

imprisonment of 360 months. He moved for a reduction in his sentence, relying on the

Fair Sentencing Act of 2010 (FSA), Pub. L. No. 111-220, 124 Stat. 2372, which increased

the amount of crack cocaine necessary to trigger mandatory minimum terms of

imprisonment. The district court denied the motion because Wilkerson was sentenced as

a career offender, and not based on the crack cocaine Guidelines. Wilkerson appealed.

His appointed counsel requested permission to withdraw and filed an Anders brief

asserting that no nonfrivolous grounds support the appeal. Exercising jurisdiction under

28 U.S.C. § 1291, we grant counsel’s motion to withdraw and dismiss this appeal.

                                             I

       In November 2000, following a jury trial, Wilkerson was convicted of aiding and

abetting the possession with intent to distribute of more than five grams of cocaine base.

A presentence report (PSR) attributed to Wilkerson 44.57 grams of cocaine base. Under

§ 2D1.1 of the Guidelines then in effect, Wilkerson’s base offense level was thirty. The

PSR assessed ten criminal history points, placing Wilkerson in criminal history category

V. For this offense level and criminal history category, the Guidelines imprisonment

range would have been 151 to 188 months.

                                             2
       Wilkerson, however, had prior felony convictions for cocaine trafficking and

voluntary manslaughter. Accordingly, he was considered to be a career offender.1

Because he had previously been convicted of a felony drug offense, the statutory

sentencing range for Wilkerson’s offense of conviction was ten years to life. 21 U.S.C. §

841(b)(1)(B). Under the applicable Guidelines provision, an offense level of thirty-seven

is assigned to career offenders convicted of an offense with a maximum sentence of life

imprisonment. U.S.S.G. § 4B1.1(b). Guidelines § 4B1.1(b) provided that this higher

offense level, rather than the level for his underlying offense, would apply to Wilkerson.

The Guidelines also assigned Wilkerson criminal history category VI because of his

career offender status. Id. Based on his offense level of thirty-seven and criminal history

category of VI, Wilkerson’s Guidelines imprisonment range was 360 months to life. The

district court sentenced him to 360 months.

       Wilkerson appealed his conviction—but not his sentence—and we affirmed.

United States v. Wilkerson, 26 F. App’x 878, 879 (10th Cir. 2002) (unpublished). In

November 2007, the United States Sentencing Commission promulgated Amendment



       1
           Career offender status applies:

       if (1) the defendant was at least eighteen years old at the time the defendant
       committed the instant offense of conviction; (2) the instant offense of
       conviction is a felony that is either a crime of violence or a controlled
       substance offense; and (3) the defendant has at least two prior felony
       convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a).

                                              3
706, which lowered the base offense levels for crack cocaine offenses. See U.S.S.G. app

C, amend. 706 (effective Nov. 1, 2007). The change was to be applied retroactively.

Relying on Amendment 706, Wilkerson moved for a reduction in his term of

imprisonment under 18 U.S.C. § 3582(c)(2). The district court denied the motion for lack

of jurisdiction, explaining that § 3582(c)(2) authorized modification of a sentence only if

the term of imprisonment was based on a range that was subsequently lowered.

Wilkerson, the court noted, was sentenced as a career offender under U.S.S.G. § 4B1.1,

and not under the amended Guideline provision, § 2D1.1, which governed crack cocaine.

Thus, the court concluded that Amendment 706 did not change the Guideline range

applicable to Wilkerson, and he was not eligible for sentence modification. Order at 2,

United States v. Wilkerson, No. CR-00-557 LH (D.N.M. Sept. 23, 2008) (Doc. 43).

       On November 1, 2011, another amendment altered the Guidelines provisions

pertaining to crack cocaine. See U.S.S.G. app. C, amend. 750 (effective Nov. 1, 2011).

Amendment 750 retroactively implemented the Fair Sentencing Act, which reduced the

disparity between crack and powder cocaine sentences from 100:1 to 18:1. See United

States v. Jackson, — F.3d —, 2012 WL 1592624, at *1 & n.1 (6th Cir. 2012). “The

amendment altered the drug-quantity tables in the Guidelines, ‘increasing the required

quantity to be subject to each base offense level in a manner proportionate to the statutory

change to the mandatory minimums effectuated by the FSA.’” United States v. Osborn,

— F.3d —, 2012 WL 1890083, at *1 (10th Cir. 2012) (quoting United States v. Curet,

670 F.3d 296, 309 (1st Cir. 2012)).

                                             4
       Wilkerson filed a motion on October 27, 2011, for a reduction in his sentence

under Amendment 750. ROA, Vol 1 at 13–18 (Doc. 473). The district court dismissed

the motion for lack of jurisdiction, concluding that the motion “suffer[ed] from the same

defect” as had Wilkerson’s motion under Amendment 706. Id. at 36 (Doc. 479).

Wilkerson, the district court reiterated, “was sentenced as a career offender, not under the

subsequently amended Sentencing Guideline provisions regarding crack cocaine.” Id.

“Therefore,” the district court concluded, his “original sentence was not based on a

sentencing range that has subsequently been lowered by the sentencing commission, and

the court lacks jurisdiction to consider this motion and it will be dismissed.” Id.

       Wilkerson appealed, and his counsel submitted an Anders brief, requesting

permission to withdraw on the basis that no nonfrivolous grounds support the appeal. See

Anders v. California, 386 U.S. 738, 744 (1967). Wilkerson has not filed a pro se response

brief, and the government did not submit a response brief either.

                                             II

                                             A

       The question before us is whether there is any nonfrivolous argument for a

reduction in Wilkerson’s sentence based on Amendment 750. We conclude that there is

not.

       Federal courts, in general, lack jurisdiction to reduce a term of imprisonment once

it has been imposed. Freeman v. United States, — U.S. —, 131 S. Ct. 2685, 2690 (2011).

“‘A district court does not have inherent authority to modify a previously imposed

                                              5
sentence; it may do so only pursuant to statutory authorization.’” United States v. Smartt,

129 F.3d 539, 540 (10th Cir. 1997) (quoting United States v. Mendoza, 118 F.3d 707, 709

(10th Cir. 1997)). Under limited circumstances, modification of a sentence is possible

under 18 U.S.C. § 3582(c). That provision states that “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” may be eligible for a reduction, “if such a

reduction is consistent with applicable policy statements issued by the Sentencing

Commission.” 18 U.S.C. § 3582(c)(2).

       In one such statement, the Commission has specified that “[a] reduction in the

defendant’s term of imprisonment is not consistent with this policy statement and

therefore is not authorized under 18 U.S.C. 3582(c)(2) if . . . [a]n amendment listed in

subsection (c) does not have the effect of lowering the defendant’s applicable guideline

range.” U.S.S.G. § 1B1.10(a)(2)(B). To determine whether an amendment would have

this effect, the policy statement explained,

       the court shall determine the amended guideline range that would have been
       applicable to the defendant if the amendment(s) to the guidelines listed in
       subsection (c) had been in effect at the time the defendant was sentenced. In
       making such determination, the court shall substitute only the amendments
       listed in subsection (c) for the corresponding guideline provisions that were
       applied when the defendant was sentenced and shall leave all other guideline
       application decisions unaffected.

U.S.S.G. § 1B1.10(b). This policy statement is binding on the federal courts. 18 U.S.C. §

3582(c)(2).

       When we apply this policy statement in the present case, it becomes clear that

                                               6
Amendment 750 does not lower Wilkerson’s applicable guideline range. Although the

underlying conviction in this case had to do with crack cocaine, Wilkerson’s sentence was

calculated based on the interaction between 21 U.S.C. § 841(b)(1)(B), which provided for

a statutory maximum sentence of life in prison for Wilkerson’s crime, and U.S.S.G. §

4B1.1(b), the career offender guideline. Subsequent changes to § 841(b)(1)(B) do not

apply to Wilkerson, as the FSA was not made retroactive. United States v. Lewis, 625

F.3d 1224, 1228 (10th Cir. 2010). And Amendment 750 affected none of the above

calculations. Even if Wilkerson were resentenced under today’s guidelines, his

applicable guideline range would be precisely the same: 360 months to life. Because

Amendment 750 would not have the effect of lowering Wilkerson’s applicable guideline

range, a reduction in his term of imprisonment is not authorized by 18 U.S.C. 3582(c)(2)

and the district court lacked jurisdiction to resentence him. U.S.S.G. § 1B1.10(a)(2)(B).2


       2
        It is entirely irrelevant that Wilkerson’s base offense level, under U.S.S.G. §
2D1.1, would now be twenty-six rather than thirty. Wilkerson is, in this respect, in the
same position as a defendant in United States v. Curet, 670 F.3d 296 (1st Cir. 2012).
There, the First Circuit explained:

       While the amendments to the guidelines are retroactive, they are of no help to
       Curet because he is a career offender. If only the amended guidelines were the
       basis for the sentence, Curet would have a somewhat reduced base offense
       level under the amended drug quantity table—a reduction from 24 to 20. See
       U.S.S.G. § 2D1.1(c). But this base offense level is irrelevant given Curet’s
       career offender status. For career offenders, a separately specified base
       offense level is to apply if it is “greater than the offense level otherwise
       applicable.” Id. § 4B1.1(b). Here, Curet was subject to a career offender base
       offense level of 37, because the maximum statutory penalty he could have
       been subject to was life imprisonment. See id.; 21 U.S.C. § 841(b)(1)(B)
                                                                              (continued...)

                                             7
                                              B

       All of the above is well-settled law in this court. See United States v. Sharkey,

543 F.3d 1236, 1238–39 (10th Cir. 2008) (“Amendment 706 had no effect on the career

offender guidelines in § 4B1.1, which were the guidelines used by the district court in

sentencing Sharkey. As a result, ‘a reduction’ in Sharkey’s term of imprisonment ‘is not

consistent with’ the policy statement in § 1B1.10 ‘and therefore is not authorized under

18 U.S.C. § 3582(c)(2)’ because a two-level reduction in the offense level under

Amendment 706 ‘does not have the effect of lowering [his] applicable guideline

range.’”); United States v. Jackson, 343 F. App’x 311, 313–14 (10th Cir. Aug. 28, 2009)

(unpublished) (granting counsel’s Anders motion and noting that “[i]n the Tenth Circuit,

the crack cocaine guidelines amendments do not entitle the defendant originally

sentenced under the career offender guideline to resentencing, and the district court had

no jurisdiction to consider such a motion”). Nonetheless, carrying out his duty under

Anders, 386 U.S. at 744, counsel for Wilkerson draws our attention to the Supreme

Court’s recent decision in Freeman v. United States, 131 S. Ct. 2685 (2011). In that case,

a plurality of the Court concluded that a sentence imposed within the range specified in



       2
        (...continued)
       (2008) (maximum statutory penalty for those who commit a drug violation
       after a prior conviction for a felony drug offense is “life imprisonment”). This
       career offender offense level, which was reduced by 2 for a total of 35, renders
       irrelevant any reduction in the base offense level.

Id. at 309.

                                              8
the defendant’s plea agreement—which relied on the crack cocaine Guidelines—was a

sentence “based on” the Guidelines and amenable to reduction under 18 U.S.C. §

3582(c)(2). Id. at 2690. “In every case,” the plurality wrote, “the judge must exercise

discretion to impose an appropriate sentence. This discretion, in turn, is framed by the

Guidelines.” Id. The plurality concluded that although the sentence was suggested in a

plea agreement, “[w]here the decision to impose a sentence is based on a range later

subject to retroactive amendment, § 3582(c)(2) permits a sentence reduction.” Id.

       Counsel for Wilkerson asserts, and we agree, that the best argument Wilkerson

could make in this case is the one he made in his brief to the district court—that where the

underlying crime involved crack cocaine, the district court’s sentencing considerations

will take into account, and therefore in some sense be “based on,” the underlying crack

cocaine Guidelines, even if the applicable sentencing range is found in the career offender

Guidelines. ROA, Vol. 1 at 15–16. Variations on this argument have gained some

traction in other circuits. In cases where the district court imposed a sentence below the

career offender guidelines, some courts have reasoned that the district court’s lower

sentence may have been based instead on the crack cocaine guidelines. See, e.g.,

Jackson, — F.3d —, 2012 WL 1592624, at *3. The court in Jackson quoted the Freeman

plurality’s instruction to “‘isolate whatever marginal effect the since-rejected Guideline

had on the defendant’s sentence’” and “‘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.’” Id. (quoting Freeman, 131 S.C.t at

                                             9
2692–93).3 At least one district court has even applied this rationale to reduce a

defendant’s mandatory term of life imprisonment as a career offender, where the record

demonstrated that “the underlying [crack cocaine] guideline calculation influenced the

Court’s conclusion that defendant qualified as a career offender in imposing a statutory

life sentence.” United States v. Miller, No. 4:89-CR-120(JMR), 2010 WL 3119768, at *2

(D. Minn. Aug. 6, 2010).

       We need not decide whether Freeman might, in either circumstance, arguably

justify a reconsideration of our precedent. The district court in Wilkerson’s case did not

grant a departure or variance from the career offender sentencing range, so we have no

reason to believe that its sentence was in any way based on other Guidelines range. Nor

does our independent review of the record reveal any basis for the conclusion that

Wilkerson’s sentence was in any way based on the sentencing guidelines for crack

cocaine. To the contrary, the transcript from Wilkerson’s sentencing hearing reveals the

district court’s concern that Wilkerson had killed his wife and trafficked in drugs in the

past. ROA, Vol. 3 at 14, 16. Nowhere in the record do we find a suggestion that the

crack cocaine Guidelines were “a relevant part of the analytic framework the judge used

to determine the sentence.” Freeman, 131 S. Ct. at 2693. Thus, even broadly applying



       3
         But see Jackson, 2012 WL 1592624, at *3–8 (Boggs, J., dissenting); United
States v. Bonds, 2012 WL 1183699, at *1 (7th Cir. Apr. 10, 2012) (unpublished)
(rejecting the applicability of Freeman to career offender cases); United States v. Clayton,
2012 WL 1889691, at *3 (11th Cir. May 25, 2012) (unpublished) (holding that district
court did not plainly err in denying motion for sentence reduction, in spite of Freeman).

                                             10
the Freeman plurality’s holding, we could not conclude that Wilkerson is “linger[ing] in

prison pursuant to [a] sentence[] that would not have been imposed but for a since-

rejected, excessive range.” Id. at 2690.4

                                            III

       Counsel’s motion to withdraw is GRANTED and this appeal is DISMISSED.



                                                       Entered for the Court


                                                       Mary Beck Briscoe
                                                       Chief Judge




       4
         Further, while we need not address here the weight attributable to the Freeman
plurality’s opinion, we do note that several circuit courts have held that Justice
Sotomayor’s concurrence constitutes the controlling opinion in Freeman under Marks v.
United States, 430 U.S. 188 (1977). See United States v. Rivera–Martinez, 665 F.3d 344,
348 (1st Cir. 2011); United States v. Brown, 653 F.3d 337, 340 & n. 1 (4th Cir.2011);
United States v. Smith, 658 F.3d 608, 611 (6th Cir.2011). Justice Sotomayor’s view was
that Freeman’s sentence was “based on” his plea agreement, but that he was eligible for a
sentence reduction because his agreement expressly relied on the subsequently lowered
crack cocaine Guidelines. Freeman, 131 S. Ct. at 2695 (Sotomayor, J., concurring). This
approach is, of course, of little use to Wilkerson, who was not sentenced pursuant to a
plea agreement.

                                            11
