                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 10, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 09-2103
 v.                                            (D.C. No. 05-CR-01484-MCA-1)
                                                          (D.N.M.)
 JASON ALONZO CARRELL,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and HOLMES, Circuit Judges. **


      Defendant-Appellant Jason Alonzo Carrell appeals from the denial of his

motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). The district court

determined that although amendments to the United States Sentencing Guidelines

(U.S.S.G.) lowered certain base offense levels for crack cocaine offenses, Mr.

Carrell was not eligible for resentencing because he was sentenced as a career


      *
        This order and judgment is not binding precedent, except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
offender. 1 R. at 68-69. Mr. Carrell’s appointed appellate counsel filed a brief

pursuant to Anders v. California, 386 U.S. 738, 744 (1967), and moved to

withdraw. The record indicates that the Anders brief and notice of the motion to

withdraw were served on Mr. Carrell. He filed a response, requesting the court to

consider the arguments he presented in the district court, which we considered

fully. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

For the reasons set forth below, we dismiss the appeal and grant counsel’s motion

to withdraw.



                                    Background

      On October 12, 2006, Mr. Carrell pled guilty to possessing five grams or

more of cocaine base (crack) with intent to distribute, in violation of 21 U.S.C. §§

841(b)(1)(A) and (b)(1)(B). 1 R. at 7-8. Mr. Carrell’s initial base offense level

was 34 under the career offender guideline, U.S.S.G. § 4B1.1. 2 R. at 11-12.

However, the court reduced his offense level by two levels based on his

diminished capacity. 2 R. at 56. After an additional adjustment of three levels

for acceptance of responsibility, Mr. Carrell’s total offense level was 29. 2 R. at

12. When combined with a criminal history category of VI, mandated by

U.S.S.G. § 4B1.1, Mr. Carrell’s guideline range was 151-188 months. 2 R. at 56.

The district court then varied downward pursuant to 18 U.S.C. § 3553(a), arriving

at a sentence of 140 months, eleven months lower than the low end of the

                                         -2-
sentencing range. 1 R. at 18; 2 R. at 58. On July 31, 2007, the district court

sentenced Mr. Carrell to 140 months of imprisonment on this charge, and 120

months on a separate felon-in-possession charge, to be served concurrently,

followed by five years’ supervised release. 1 R. at 18-19.

      Subsequently, the United States Sentencing Commission reduced the

offense level applicable to most crack cocaine offenses by two levels. See U.S.

Sentencing Guidelines Manual app. C, amend. 706 (Supp. May 1, 2008) (revising

crack cocaine guidelines); U.S. Sentencing Guidelines Manual app. C, amend.

713 (Supp. May 1, 2008) (making Amendment 706 retroactive). Mr. Carrell then

moved for modification of his sentence pursuant to 18 U.S.C. § 3582(c)(2). 1 R.

at 23-49. The district court denied relief, 1 R. at 68-69, and Mr. Carrell appeals,

1 R. at 70.

      Mr. Carrell’s appointed appellate counsel filed an Anders brief, suggesting

that no meritorious issues existed for appeal because of our clear precedent, and

moved to withdraw. Anders Br. at 7. The government notified the court of its

intent not to file an answer brief given the lack of meritorious issues. On August

31, 2009, we informed Mr. Carrell that he could respond to his counsel’s brief.

See 10th Cir. R. 46.4(B)(2).

      In his response, Mr. Carrell requests the court to consider the arguments he

presented in the district court. Aplt. Response at 1. Mr. Carrell previously

argued that although he was sentenced as a career offender, his sentence should

                                         -3-
be reduced under § 3582(c)(2) based on retroactive application of the crack

cocaine amendments. 1 R. at 25, 29. He contended that under Booker and later

cases, the district court must treat the Guidelines as advisory upon resentencing

under § 3582(c)(2). 1 R. at 27, 41. He also requested a hearing. 1 R. at 48-49.

      “We review de novo the district court’s interpretation of a statute or the

sentencing guidelines. We review for an abuse of discretion a district court’s

decision to deny a reduction in sentence under 18 U.S.C. § 3582(c)(2).” United

States v. Sharkey, 543 F.3d 1236, 1238 (10th Cir. 2008). Because this case is not

a direct appeal or an appeal from the denial of § 2255 relief, Mr. Carrell’s motion

for reduction of sentence depends only on § 3582(c)(2). See id. at 1238. Section

3582(c)(2) permits a court to reduce a sentence if the sentencing range has been

lowered by the Sentencing Commission.

      Mr. Carrell’s sentence is not based on a sentencing range that has been

lowered. As we held in Sharkey, “Amendment 706 ha[s] no effect on the career

offender guidelines in § 4B1.1” and therefore a reduction in sentence is not

authorized under § 3582(c)(2). Id. at 1239. Furthermore, Sharkey rejected the

argument that the Booker line of cases provides a separate basis for relief under §

3582(c)(2). Id.; see also United States v. Rhodes, 549 F.3d 833, 840 (10th Cir.

2008), cert. denied, 129 S. Ct. 2052 (2009) (concluding “that Booker simply has

no bearing on sentencing modification proceedings conducted under §

3582(c)(2)”).

                                        -4-
      Mr. Carrell urges us to revisit these holdings. 1 R. at 27-29. We, however,

“are bound by the precedent of prior panels absent en banc reconsideration or a

superseding contrary decision by the Supreme Court.” United States v. Mitchell,

518 F.3d 740, 752 n.14 (10th Cir. 2008).

      Similarly, this court has repeatedly found without merit the argument that

the Sentencing Commission’s policy statements are not binding because they

represent an unconstitutional restriction on the jurisdiction of an Article III court.

United States v. Dryden, 563 F.3d 1168, 1171 (10th Cir. 2009); 1 R. at 27. The

policy statements of § 1B1.10(a)(2) are “merely a paraphrase of Congress’s own

language” contained in 18 U.S.C. § 3582 limiting a sentence reduction to cases in

which a defendant’s sentencing range has been lowered by the Sentencing

Commission. Dryden, 563 F.3d at 1171.

      In Anders, the Supreme Court held that if appointed counsel “finds his

[client’s] 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 a brief addressing “anything in the record that

might arguably support the appeal.” Id. When counsel submits an Anders 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. Anders, 386 U.S.

                                          -5-
at 744.

      After reviewing the record, we agree with counsel’s assessment that no

meritorious issues exist on appeal. Because Mr. Carrell’s status as a career

offender determined his sentence, Amendment 706 did not lower his applicable

guidelines range. No hearing would aid him. The district court properly

concluded that it lacked authority under § 3582(c)(2) to reduce Mr. Carrell’s

sentence.

      APPEAL DISMISSED. Counsel’s motion to withdraw is GRANTED.

                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




                                        -6-
