                                                                      FILED
                                               United States Court of Appeals
                     UNITED STATES COURT OF APPEALS Tenth Circuit
                                                                October 23, 2012
                                   TENTH CIRCUIT
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 12-2083
 v.                                          (D.C. No. 2:02-CR-02262-JAP-3)
                                                         (D.N.M.)
 WILLIAM MACK FIELDS,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


      After William Fields pleaded guilty to federal drug and firearm charges, the

district court sentenced him to twenty years in prison. The court did so because

of a Rule 11(c)(1)(C) stipulated sentence Mr. Fields and the government agreed

to. That sentence, in turn, was based on the fact Mr. Fields inescapably faced a

statutorily prescribed mandatory minimum term of twenty years.




      *
         After examining the briefs and 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order and judgment is not binding precedent except under the doctrines of law of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.
      Years later and despite all this, Mr. Fields filed a motion arguing he was

entitled under 18 U.S.C. § 3582(c)(2) to a reduced sentence because Amendment

706 of the Sentencing Guidelines retroactively reduced crack cocaine sentences

by two “base levels.” The district court denied the motion, holding that Mr.

Fields was ineligible for § 3582(c)(2) relief because his sentence was “based on”

his plea agreement, not the guidelines. Mr. Fields’s effort to undo that result on

appeal proved unsuccessful. United States v. Fields, 339 F. App’x 872, 875 (10th

Cir. 2009).

      More recently, Mr. Fields filed a new § 3582(c)(2) motion. This time he

argued entitlement to relief in light of the Supreme Court’s intervening decision

in Freeman v. United States, 131 S. Ct. 2685 (2011). The district court disagreed,

however, and denied Mr. Fields’s motion. Once again before this court on appeal,

Mr. Fields’s attorney has filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), advising us that he discerns no colorable basis for an 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.” Id. 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

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submit his own arguments for the court’s consideration. Id. After that, we must

“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, counsel for Mr. Fields identifies two potential bases for

an appeal of the district court’s adverse jurisdictional ruling: the first under

Justice Sotomayor’s concurrence in Freeman and the second under the plurality

opinion. But both lines of attack, counsel argues, lack merit. For his part, Mr.

Fields has filed a response to the Anders brief. But beyond a single conclusory

assertion that Freeman permits the district court to entertain his motion, Mr.

Fields has not submitted any argument or authority calling into question his

counsel’s analysis. 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. Fields’s

counsel that any appeal in this case would be fruitless. In general, a district court

has no authority to modify a term of imprisonment after it has been imposed. 18

U.S.C. § 3582(c). However, a district court may reduce “a term of imprisonment

based on a sentencing range that has subsequently been lowered by the

Sentencing Commission.” Id. § 3582(c)(2). The questions presented in

Freeman were whether and when an initial sentence imposed (as here) under a

Rule 11(c)(1)(C) plea agreement — an agreement in which the defendant and the

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prosecutor stipulate to a sentence that the court must impose if it accepts the plea

agreement — can be said to be “based on” a guidelines range.

      Freeman produced a fractured result. Four justices, representing a plurality

of the court, indicated that they would “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 or to approve

the agreement.” Freeman, 131 S. Ct. at 2692-93 (Kennedy, J.). The dissent of

four justices preferred a categorical rule barring any revision to a sentence

imposed under a Rule 11(c)(1)(C) agreement, arguing that any such sentence is

“based on” the plea agreement, not the guidelines. Id. at 2701 (Roberts, C.J.,

dissenting). Justice Sotomayor, writing for herself in a controlling concurrence,

adopted something of a middle ground. Rejecting the dissent’s categorical rule,

she suggested district courts have authority to revise a sentence only “when a

[Rule 11(c)(1)(C)] agreement expressly uses a Guidelines sentencing range to

establish the term of imprisonment.” Freeman, 131 S. Ct. at 2698 (Sotomayor, J.,

concurring in judgment).

      The difficulty for Mr. Fields is that none of these approaches helps his

cause. It is apparent that Mr. Fields’s sentence, to the extent it was “based on”

anything outside the plea agreement itself, was based on the twenty-year statutory

minimum sentence he faced. There is no indication in the record that the

guidelines advisory range of 108 to 135 months, considerably less than the

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statutory minimum the parties stipulated to, formed any “relevant part of the

analytical framework” the district court applied to Mr. Fields’s sentence.

Certainly Mr. Fields offers us no reason to conclude that it did. Therefore, under

any and all of the three approaches discussed by Freeman, the district court was

correct that it lacked authority to revise Mr. Fields’s sentence.

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


                                        ENTERED FOR THE COURT



                                        Neil M. Gorsuch
                                        Circuit Judge




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