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

                             FOR THE TENTH CIRCUIT                         May 12, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 15-2196
                                                 (D.C. No. 2:95-CR-00104-LH-3)
RAMON MONTAÑO,                                              (D. N.M.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

      Ramon Montaño appeals the district court’s dismissal of his motion for a

sentence reduction under 18 U.S.C. § 3582(c)(2) for lack of jurisdiction. His counsel

moves for leave to withdraw in a brief filed pursuant to Anders v. California, 386

U.S. 738 (1967). Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a), we dismiss the appeal and grant counsel’s motion to withdraw.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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

      Montaño was convicted by a jury of possession with intent to distribute

marijuana and methamphetamine, and engagement in a continuing criminal enterprise

(“CCE”). His presentence report (“PSR”) recommended a base offense level of 42:

the offense involved 447,720 kilograms of marijuana equivalent resulting in a base

offense level of 38 under the then applicable version of U.S.S.G. § 2D1.1(c), and the

conviction for engagement in a CCE increased the offense level by four. The PSR

calculated a criminal history category of I and recommended a Guidelines range of

360 months to life imprisonment. The district court adopted the PSR and sentenced

Montaño to 360 months’ imprisonment.

      In 2014, the United States Sentencing Commission promulgated Guidelines

Amendment 782, which generally lowered the offense level of individuals sentenced

under § 2D1.1(c) by two. U.S.S.G. Manual, Supp. to App. C, amend. 782. Montaño

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

dismissed the motion for lack of jurisdiction, and Montaño timely appealed.

                                          II

      If an attorney concludes that any appeal would be frivolous after

conscientiously examining the case, counsel may so advise the court and request

permission to withdraw. Anders, 386 U.S. at 744. Counsel must submit a brief

highlighting any potentially appealable issues and submit the brief to the defendant,

who may then submit a pro se brief. Id. If the court determines that the appeal is in



                                          2
fact frivolous upon careful examination of the record, it may grant the request to

withdraw and dismiss the appeal. Id.

      Counsel raises a number of substantive arguments, but argues that the district

court lacked jurisdiction to consider them. “Federal courts generally lack jurisdiction

to modify a term of imprisonment once it has been imposed,” United States v.

Graham, 704 F.3d 1275, 1277 (10th Cir. 2013), and may only modify a defendant’s

sentence when Congress expressly authorizes it, § 3582(c); see also Dillon v. United

States, 560 U.S. 817, 819-20 (2010). Congress has authorized courts to modify a

sentence for “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.” § 3582(c)(2). We review “de novo the scope of a district court’s

authority to resentence a defendant in a § 3582(c)(2) proceeding.” United States v.

Gay, 771 F.3d 681, 685 (10th Cir. 2014).

      Although Amendment 782 reduced most of the quantity-based offense levels

on the Drug Quantity Table, it retained a base offense level of 38 for offenses

involving 90,000 kilograms or more of marijuana. U.S.S.G. § 2D1.1(c). Because the

quantity of drugs involved in Montaño’s offense—approximately 447,720 kilograms

of marijuana equivalent—is well above the amended threshold of 90,000 kilograms

for a base offense level of 38, his base offense level and Guidelines range are

unchanged by Amendment 782. Accordingly, he was not eligible for a sentence

reduction under § 3582(c). See § 1B1.10(a)(2)(B) (a defendant is not eligible for a

sentence reduction when the amendment “does not have the effect of lowering the

                                           3
defendant’s applicable guideline range”). And because a district court does not have

jurisdiction over a motion if “a change in the guidelines would not lower the offense

level,” United States v. White, 765 F.3d 1240 (10th Cir. 2014), the district court

properly concluded it did not have jurisdiction. Id. at 1246. Any argument to the

contrary would be frivolous.

                                          III

      Counsel is correct that the district court lacked jurisdiction to decide

Montaño’s motion. We GRANT counsel’s request to withdraw and DISMISS the

appeal.


                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge




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