                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                    May 7, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                               TENTH CIRCUIT
                          __________________________

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                         No. 12-1428
 v.                                          (D.Ct. No. 1:05-CR-00067-WYD-1)
                                                          (D. Colo.)
 SIMON JOSE LAGUNAS,

              Defendant - Appellant.
                     ______________________________

                           ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      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.



      Appellant Simon Jose Lagunas appeals the district court’s denial of his 18


      *
         This order and judgment is not binding precedent except under the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.
U.S.C. § 3582(c)(2) motion for a reduction of sentence. Although Mr. Lagunas

has filed a pro se appeal, his appointed counsel has filed an Anders brief and

moves for permission to withdraw as counsel. See Anders v. California, 386 U.S.

738, 744 (1967). For the reasons set forth hereafter, we grant counsel’s motion to

withdraw and dismiss this appeal. Id.



                      I. Factual and Procedural Background

      The following facts are contained in the record on appeal, as well as in our

decisions disposing of Mr. Lagunas’s prior appeals to this court. See United

States v. Lagunas, 309 F.App’x 265 (10th Cir. Jan. 30, 2009) (unpublished op.)

(Lagunas II); United States v. Lagunas, 214 F.App’x 841 (10th Cir. Jan. 30, 2007)

(unpublished op.) (Lagunas I). On January 20, 2005, pursuant to a search

warrant, a narcotics unit of the police department in Pueblo, Colorado, searched

Mr. Lagunas’s residence where they found an unloaded semi-automatic pistol and

104.5 gross grams of a cocaine base (crack cocaine) substance, which a laboratory

test later revealed totaled 85.37 grams of crack. See Lagunas I, 214 F.App’x at

843. On arrest, Mr. Lagunas admitted both the gun and crack cocaine belonged to

him and he planned to sell the drug to others. See id. He later pled guilty to

possession with intent to distribute more than fifty grams of crack cocaine, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). See id. In his plea

agreement and during the change of plea hearing, Mr. Lagunas acknowledged the

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statutory penalty for his offense required a mandatory minimum sentence of 120

months’ imprisonment. See Lagunas II, 309 F.App’x at 266.



      Prior to sentencing, a federal probation officer prepared a presentence

report in conjunction with the 2004 United States Sentencing Guidelines

(“Guidelines” or “U.S.S.G.”). Based on the total of 85.37 grams of crack cocaine

seized, the probation officer calculated the base offense level at 32. The

probation officer added two levels under § 2D1.1(b)(1), for possession of a

dangerous weapon, and reduced it three levels, for acceptance of responsibility,

for a total offense level of 31. Mr. Lagunas’s criminal history category of I,

together with a total offense level of 31, resulted in a Guidelines range of 108 to

135 months’ imprisonment. However, the probation officer noted the statutory

mandatory minimum term of imprisonment for his offense, pursuant to 21 U.S.C.

§ 841(a)(1) and (b)(1)(A)(iii), required a 120-month sentence. See 21 U.S.C.

§ 841(b)(1)(A)(iii) (effective Nov. 2, 2002, to March 8, 2006). Accordingly, on

December 29, 2005, the district court sentenced Mr. Lagunas to the statutory

mandatory minimum term of 120 months’ imprisonment, rather than pursuant to

the calculated Guidelines range. See Lagunas II, 309 F.App’x at 266; Lagunas I,

214 F.App’x at 843.



      Mr. Lagunas filed a direct appeal, after which his counsel filed an Anders

                                         -3-
brief and motion to withdraw as counsel, stating no meritorious issues existed to

support his appeal. See Lagunas I, 214 F.App’x at 843. We granted counsel’s

motion and dismissed the appeal, rejecting Mr. Lagunas’s argument that United

States v. Booker, 543 U.S. 220 (2005), somehow undermined the validity of his

mandatory minimum sentence and holding the district court “was bound under 21

U.S.C. § 841(a)(1) [and] (b)(1)(A)(iii) to sentence Mr. Lagunas to at least ten

years incarceration.” Lagunas I, 214 F.App’x at 845.



      Thereafter, the United States Sentencing Commission (Sentencing

Commission) issued Amendment 706 which modified the Drug Quantity Table in

U.S.S.G. § 2D1.1(c) downward two levels for crack cocaine, effective November

1, 2007, and retroactive as of March 3, 2008. 1 In February 2008, Mr. Lagunas

filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) based on

the changes in the Drug Quantity Table and the resulting two-level reduction in

offense levels. See Lagunas II, 309 F.App’x at 266.



      Following appointment of counsel for Mr. Lagunas and pleadings filed by

the parties, the district court filed an order denying Mr. Lagunas’s § 3582(c)

motion, stating he was ineligible for a sentence reduction under 18 U.S.C.


      1
        See U.S.S.G. Supp. to App. C, Amends. 706 (Reason for Amend.), 712,
and 713; U.S.S.G. § 1B1.10(a)(2).

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§ 3582(c)(2) because he was sentenced to the statutory mandatory minimum of

120 months’ imprisonment. See Lagunas II, 309 F.App’x at 266. We affirmed

the district court’s order, holding the district court had no authority to sentence

Mr. Lagunas below the statutory mandatory minimum. Id. at 267.



      Shortly thereafter, Congress enacted the Fair Sentencing Act of 2010,

which reduced the mandatory minimum sentencing penalties for crack cocaine by

significantly reducing the prior crack/powder ratio but which we held did not

apply retroactively to defendants sentenced under the prior sentencing ratio

statute. See Pub. L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010); United States v.

Lewis, 625 F.3d 1224, 1228 (10th Cir. 2010) (holding statutory reduction in

mandatory minimum penalty based on new ratio is not retroactive), overruled in

part by Dorsey v. United States, ___ U.S. ___, 132 S. Ct. 2321, 2335 (2012)

(holding the revised mandatory minimum sentences in the Fair Sentencing Act

applied to pre-Act offenders sentenced after August 3, 2010). In addition, the Act

directed the Sentencing Commission to revise the Guidelines to reflect a change

in the crack/powder ratios. See Pub. L. No. 111-220, 124 Stat. 2372, 2374.

Based on that directive, the Commission again reduced the Drug Quantity Table

offense levels for crack cocaine, giving those reductions retroactive effect by

amending Guidelines § 1B.10(c), which allows district courts to retroactively

reduce a defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) for

                                          -5-
certain expressly-cited amendments. 2



      On November 1, 2011, Mr. Lagunas filed the instant pro se motion to

reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) on grounds he qualified

for the newly-enacted mandatory minimum sentence of five years, or sixty

months, for his offense, as provided by the amendments in the Fair Sentencing

Act. 3 In support of Mr. Lagunas’s pro se motion, his appointed counsel filed an

additional pleading, acknowledging the Supreme Court’s holding in Dorsey does

not directly favor Mr. Lagunas, who received his sentence prior to the Act’s

effective date. Nevertheless, counsel argued the reduced statutory mandatory

minimum sentence of sixty months should be applied to defendants, like Mr.

Lagunas, who were sentenced prior to the Act. On September 14, 2012, the

district court issued an order summarily denying the motion for a sentence

      2
        See U.S.S.G. Supp. to App. C, Amends. 748, 750, and 759, which
amended U.S.S.G. §§ 1B1.10 and 2D1.1 and provided retroactive application of
the lower crack cocaine drug offense levels when proceeding under 18 U.S.C.
§ 3582(c)(2). See also Sentencing Commission’s Guidelines Notice, 76 FR
41332-01, 2011 WL 2689212, at *1 (July 13, 2011).
      3
         While previously 21 U.S.C. § 841(b)(1)(A)(iii) prescribed a mandatory
minimum sentence of ten years, or 120 months, for fifty grams or more of a
mixture or substance containing cocaine base, Congress amended the statute, now
imposing a ten-year minimum for 280 grams or more of cocaine base. Compare
21 U.S.C. § 841(b)(1)(A)(iii) (effective Aug. 3, 2010) with 21 U.S.C.
§ 841(b)(1)(A)(iii) (effective Nov. 2, 2002, to March 8, 2006). In addition, the
statute has been further amended to provide a mandatory minimum sentence of
five years, or sixty months, for twenty-eight or more grams of cocaine base. See
21 U.S.C. § 841(b)(1)(B)(iii) (effective Aug. 3, 2010).

                                        -6-
reduction. Mr. Lagunas now appeals the district court’s order.



                                   II. Discussion

      Following Mr. Lagunas’s pro se filing of the notice of appeal, appointed

counsel filed an Anders appeal brief explaining that after a careful examination of

the record on appeal and the relevant law, including our decision in Lewis and the

Supreme Court’s decision in Dorsey, no meritorious issues exist for our review on

appeal. See Anders, 386 U.S. at 744. In support, counsel explains Mr. Lagunas

received a statutory mandatory minimum sentence of 120 months imprisonment in

December 2005, and the Fair Sentencing Act does not apply retroactively to

sentences, like Mr. Lagunas’s, imposed prior to August 3, 2010.



      Pursuant to Anders, this court gave Mr. Lagunas an opportunity to respond

to his counsel’s Anders brief. See 386 U.S. at 744. However, Mr. Lagunas did

not file such a response. The government filed a notice of its intention not to file

an answer brief in this appeal, stating it agrees with the assessment provided by

Mr. Lagunas’s counsel in the aforementioned Anders brief.



      As required by Anders, we have conducted a full examination of the record

before us. See Anders, 386 U.S. at 744. Based on such examination and the

applicable law, we readily conclude Mr. Lagunas has raised no meritorious claims

                                         -7-
on appeal. Under § 3582(c)(2), a court may reduce a previously-imposed

sentence if the requested reduction is based on “a sentencing range that has

subsequently been lowered by the Sentencing Commission.” 18 U.S.C.

§ 3582(c)(2). See also Dillon v. United States, ___U.S. ___, 130 S. Ct. 2683,

2687-88 (2010). As explained in Mr. Lagunas’s previous appeal, he is not

serving a sentence based on a sentencing range lowered by the Sentencing

Commission because he was sentenced pursuant to the statutory mandatory

minimum sentence. See Lagunas II, 309 F.App’x at 266-67. See also United

States v. Smartt, 129 F.3d 539, 542 (10th Cir. 1997).



      In addition, our prior precedent squarely precludes retroactive application

of the lower mandatory minimum sentence provided by the Fair Sentencing Act to

offenders, like Mr. Lagunas, who received their sentence before the Act’s

effective date of August 3, 2010. See United States v. Lucero, ___ F.3d ___,

2013 WL 1501954, at *3 (10th Cir. Apr. 15, 2013) (slip op.). 4 This is in full

accord with decisions of other federal courts of appeal. See United States v.

Baptist, 646 F.3d 1225, 1229 (9th Cir. 2011) (listing other circuit decisions), cert.

denied, 132 S. Ct. 1053 (2012). Finally, as counsel outlined in his Anders brief,

the Supreme Court’s decision in Dorsey is inapposite here as it stands for the

      4
        See also United States v. Cornelius, 696 F.3d 1307, 1328 (10th Cir.
2012); United States v. Osborn, 679 F.3d 1193, 1195 n.1 (10th Cir. 2012); Lewis,
625 F.3d at 1228.

                                         -8-
narrow proposition the lower mandatory minimum sentences, provided by the Fair

Sentencing Act, apply to defendants who committed their offense before the Act’s

effective date but were sentenced after it took effect. See Dorsey, 132 S. Ct. at

2335. Because Mr. Lagunas was sentenced before the Act’s effective date, the

holding in Dorsey clearly does not apply. In sum, Mr. Lagunas has not raised a

meritorious claim on appeal.



                                  III. Conclusion

      For these reasons, no meritorious appellate issue exists for our review on

direct appeal. Accordingly, we GRANT counsel’s motion to withdraw and

DISMISS Mr. Lagunas’s appeal.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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