                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                   June 8, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 10-2238
 v.                                           (D.C. No. 2:98-CR-00513-MV-1)
                                                         (D. N.M.)
 TERRANCE DEWAYNE HECKARD,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.


      Terrance DeWayne Heckard was convicted of, among other things,

conspiracy to distribute and possession with intent to distribute cocaine. 21

U.S.C. §§ 846 & 841(a)(1). The district court sentenced him to 168 months in

prison and five years supervised release. Several years later, Mr. Heckard filed a

motion under 18 U.S.C. § 3582(c)(2), arguing he was entitled to a reduced

sentence under Amendment 706 of the Sentencing Guidelines. That Amendment


      *
         After examining appellant’s brief and the 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 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order and judgment is not binding precedent except under the doctrines of law of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.
effectively reduces crack cocaine sentences by two base levels. Following an

evidentiary hearing, the district court denied Mr. Heckard’s motion, holding that

his drug offenses involved powder cocaine, not crack cocaine, and so he was

ineligible for a sentence reduction.

      Mr. Heckard now seeks to appeal that ruling. His attorney, however, has

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), advising us

that he discerns no colorable basis for the appeal and seeking leave to withdraw.

      Anders authorizes a defendant’s lawyer to seek permission to withdraw

from an appeal if, “after a conscientious examination,” the lawyer finds the

appeal “wholly frivolous.” 386 U.S. at 744. Invoking Anders requires the lawyer

to “submit a brief to the client and the appellate court indicating any potential

appealable issues based on the record.” United States v. Calderon, 428 F.3d 928,

930 (10th Cir. 2005) (citing Anders, 386 U.S. at 744). The client may then

submit his own arguments for the court’s consideration. Id. And we must then

“conduct a full examination of the record to determine whether [the] defendant’s

claims are wholly frivolous.” Id. If they are, we may grant counsel’s motion to

withdraw and dismiss the appeal. Id.

      In his Anders brief, Mr. Heckard’s counsel identifies three potential points

of appeal in this case: the first two concern the district court’s decision to deny

Mr. Heckard’s motion under § 3582(c)(2) and the last one deals with the

effectiveness (or ineffectiveness) of trial counsel. All three lines of attack,

                                          -2-
counsel argues, would be pointless, lacking any merit. Despite being afforded

opportunity to do so, Mr. Heckard has not submitted any materials disputing this

analysis or identifying any other additional arguments he would like to pursue.

Similarly, the government has indicated its intent not to respond to the Anders

brief. After our own independent review of the record, we agree with Mr.

Heckard’s counsel that any appeal in this case would be fruitless.

      First, the Anders brief notes that Mr. Heckard might argue that he is

entitled to a sentence reduction under Amendment 706 because his drug offenses

involved crack cocaine. The brief correctly notes, however, that record evidence

refutes this contention. Mr. Heckard was sentenced based on powder cocaine, not

crack cocaine, and so the district court correctly held he was ineligible for relief

under § 3582(c)(2).

      Second, the Anders brief raises the possibility that Mr. Heckard might argue

that, under United States v. Booker, 543 U.S. 220 (2005), the district court had

the power to reduce his sentence under § 3582(c)(2) even if his offense involved

only powder cocaine. But, as the brief correctly points out, this court has already

rejected that argument. See United States v. Rhodes, 549 F.3d 833, 840-41 (10th

Cir. 2008) (concluding “that Booker simply has no bearing on sentencing

modification proceedings conducted under § 3582(c)(2)”). And the Supreme

Court has arrived at the same conclusion. See Dillon v. United States, 130 S. Ct.

2683, 2692-93 (2010). Neither can Mr. Heckard argue that § 3582(c)(2) itself

                                         -3-
authorized the district court to reduce his sentence. See United States v. Pedraza,

550 F.3d 1218, 1220 (10th Cir. 2008). We therefore agree with Mr. Heckard’s

counsel that this avenue of appeal would be unavailing as well.

      Third and finally, the Anders brief raises the possibility that Mr. Heckard

might argue his trial counsel was ineffective. The brief correctly notes, however,

that there is nothing in the record to support this claim. We thus agree with

counsel that any appeal on this basis would be frivolous.

      Counsel’s motion to withdraw is granted and this appeal is dismissed.



                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




                                        -4-
