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

                             FOR THE TENTH CIRCUIT                         January 28, 2016
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 15-4070
                                                  (D.C. No. 2:06-CR-00851-TS-1)
RUBEN SERRATO,                                               (D. Utah)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.
                 _________________________________

      In 2008, Ruben Serrato pleaded guilty to one count of conspiracy to distribute

a controlled substance, methamphetamine, in violation of 21 U.S.C. §§ 846,

841(a)(1), and 841(b)(1)(A). The district court granted a three-year downward

variance and sentenced him to 199 months of imprisonment, followed by 60 months

of supervised release. Despite an appeal waiver in his plea agreement, Serrato

appealed but later moved to dismiss his appeal. See United States v. Serrato, 336 Fed.

Appx. 846 (10th Cir. 2009). On April 15, 2015, based on Amendment 782 to the

      *
        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. This order and judgment is not binding precedent,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.
Sentencing Guidelines, the district court granted a joint motion to reduce Serrato’s

sentence to 188 months of imprisonment, the low end of his newly applicable

advisory sentencing range. On May 4, 2015, Serrato timely filed his notice of appeal.

      For this appeal, Serrato’s counsel has filed a brief under Anders v. California,

386 U.S. 738, 744–45 (1967), stating that no reasonable grounds for appeal exist.

Even so, the brief attempts an argument in Serrato’s favor. We invited Serrato to

respond, but he has not. We conclude that any potential grounds for appeal would be

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

                                   BACKGROUND

      In 2006, the Salt Lake City District Office of the Drug Enforcement

Administration (DEA) received information from a confidential informant regarding

a local drug-trafficking organization’s heroin, methamphetamine, and cocaine

distribution network. The DEA began an undercover operation, which revealed that

Serrato supplied the organization’s methamphetamine. Though the organization itself

was involved in other drugs, Serrato exclusively supplied methamphetamine. After an

extensive undercover investigation, a grand jury indicted Serrato on December 6,

2006, charging him with eight counts for conspiracy to distribute methamphetamine,

possession with intent to distribute methamphetamine, and firearms charges.

Ultimately, Serrato pleaded guilty to one count of conspiracy to distribute

methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), in

exchange for dismissal of the other seven counts.



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      The presentence investigation report calculated Serrato’s sentencing-guideline

range as 235 to 293 months. The probation office determined this range based on

Serrato’s total offense level of 33, combined with his criminal history category of VI.

After considering the factors set forth in 18 U.S.C. § 3553(a), the district court varied

downward by 36 months, sentencing Serrato to 199 months of imprisonment.

      In 2009, despite an appeal waiver in his plea agreement, Serrato appealed his

conviction and sentence but later voluntarily dismissed it. See Serrato, 336 Fed.

Appx. at 846. More than five years later, Serrato filed a pro se motion seeking a two-

level reduction in his offense level under the United States Sentencing Commission’s

Amendment 782, which amended the Sentencing Guidelines. See 18 U.S.C.

§ 3582(c); U.S.S.G. § 1B1.10. Under the Amendment, Serrato’s offense level

dropped to 31, which reduced his advisory Guideline range from 235 to 293 months

to 188 to 235 months. In response, on April 3, 2015, Serrato’s Assistant Federal

Public Defender and the Assistant United States Attorney jointly moved to reduce

Serrato’s sentence to 188 months. The court granted the motion and reduced

Serrato’s sentence accordingly. As Serrato’s counsel explained in the Anders brief,

“[b]ecause Mr. Serrato had originally received a sentence 36 months below the

original guideline range, the requested reduction to the low end of the new guideline

resulted in a reduction which is substantially less than what a 2-level reduction would

otherwise entail.” Appellant’s Opening Br. at 3.




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                                     DISCUSSION

      Because defense counsel has submitted an Anders brief, our task is to “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) (citing

Anders, 386 U.S. at 744). “Frivolous means lacking a legal basis or legal merit; not

serious; not reasonably purposeful.” United States v. Lain, 640 F.3d 1134, 1137 (10th

Cir. 2011).

      Defense counsel raises only one possible issue for our consideration: whether

the district court’s failure to reduce Serrato’s sentence below the post-Amendment

782 sentencing range violates Serrato’s right to a jury trial. Specifically, counsel

suggests that “[a]lthough the amendment to the Sentencing Guidelines bars

modification of a sentence below the newly applicable guideline range during

retroactive application proceedings, judges constitutionally must retain discretion to

sentence defendants based on individual circumstances.” Appellant’s Opening Br. at

4. Relying on the principle that criminal defendants have a constitutional right to

have a jury decide any issue “essential to punishment” announced in United States v.

Booker, 543 U.S. 220, 223 (2005), defense counsel submits that disallowing the

district court from reducing Serrato’s sentence below the reduced range resulting

from Amendment 782 somehow might violate Serrato’s right to have a jury

determine his guilt beyond a reasonable doubt.

      The United States Supreme Court has addressed—and disposed of—this issue

in Dillon v. United States, 560 U.S. 817 (2010). In Dillon, the Court held that Booker

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does not apply to § 3582(c)(2) resentencing proceedings such as this. Dillon, 560

U.S. at 828 (“[P]roceedings under § 3582(c)(2) do not implicate the Sixth

Amendment right to have essential facts found by a jury beyond a reasonable

doubt.”). As the Court explained, “[b]ecause § 3582(c)(2) proceedings give judges no

more than . . . circumscribed discretion, ‘[t]here is no encroachment here by the judge

upon facts historically found by the jury, nor any threat to the jury’s domain as a

bulwark at trial between the State and the accused.’” Id. at 829 (second alteration in

original) (quoting Oregon v. Ice, 555 U.S. 160, 168 (2009)). Thus, like Dillon,

Serrato’s “Sixth Amendment rights were not violated by the District Court’s

adherence to the instruction in § 1B1.10 to consider a reduction only within the

amendment Guidelines range.” Id.

                                   CONCLUSION

      Because Serrato’s appeal presents only a frivolous issue, we grant counsel’s

motion to withdraw and dismiss this appeal.


                                           Entered for the Court


                                           Gregory A. Phillips
                                           Circuit Judge




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