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

                             FOR THE TENTH CIRCUIT                                June 7, 2016
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 15-2212
                                                   (D.C. No. 2:01-CR-00588-MCA-3)
VICTOR LINDSEY,                                               (D. N. Mex.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

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

       Federal prisoner Victor Lindsey appeals the district court’s denial of his motion

for a sentence reduction under 18 U.S.C. § 3582(c)(2). His appointed counsel has

submitted an Anders brief stating this appeal presents no non-frivolous grounds for

reversal. We have carefully reviewed the record, and we agree. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.



       *
         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 This order and judgment is not binding precedent,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. BACKGROUND

                              A. Conviction and Sentence

       In 2002, Mr. Lindsey was convicted of possession and distribution of cocaine base

and marijuana, two firearm offenses, and conspiracy. The district court sentenced him to

181 months in prison. When his federal sentence ends in July 2016, he will begin a life

sentence in Michigan state prison for a murder conviction. Mr. Lindsey has an extensive

history of prison misconduct, including eight instances of mail abuse. United States v.

Lindsey, No. 2:01-cr-00588-MCA (D.N.M. 2003), ECF No. 412-1 at 3-21 (listing Mr.

Lindsey’s disciplinary actions).

                            B. Motion to Reduce Sentence

       Mr. Lindsey has filed seven motions seeking a sentence reduction. Id., ECF Nos.

350, 373, 396, 399, 402, 404, 406. This appeal arises out of the district court’s denial of

his § 3582(c)(2) motion filed on January 20, 2015, which sought a reduction based on

Amendment 782.

       On October 16, 2015, the court held a motion hearing. Mr. Lindsey, through

counsel, contended he did not pose a threat to public safety because his life sentence in

Michigan prison will begin immediately after his federal imprisonment ends.

       On October 30, 2015, the district court denied the motion after considering the 18

U.S.C. § 3553(a) factors and concluding Mr. Lindsey did not warrant a sentence

reduction based on his criminal history and prison misconduct.

       On November 9, 2015, Mr. Lindsey filed a notice of appeal.




                                             -2-
                                   C. Anders Brief

       On March 28, 2016, Mr. Lindsey’s appointed counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), which

       authorizes counsel to request permission to withdraw where counsel
       conscientiously examines a case and determines that any appeal would be
       wholly frivolous. Under Anders, counsel must submit a brief to the client
       and the appellate court indicating any potential appealable issues based on
       the record. The client may then choose to submit arguments to the court.
       The Court must then conduct a full examination of the record to determine
       whether defendant’s claims are wholly frivolous. If the court concludes
       after such an examination that the appeal is frivolous, it may grant
       counsel’s motion to withdraw and may dismiss the appeal.

United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citations omitted).

       Counsel indicated “[t]he only potential issue is whether the District Court abused

its discretion in denying Mr. Lindsey’s motion for reduction of sentence.” Anders Brief

at 4. But counsel stated that argument was not meritorious and therefore sought to

withdraw given the absence of non-frivolous arguments on appeal.

                              D. Mr. Lindsey’s Response

       Mr. Lindsey filed a response to the Anders brief. He argues his appellate counsel

has been ineffective because he (1) failed to investigate “newly discovered evidence,”

(2) filed the Anders brief even though he argued Mr. Lindsey’s sentence should be

reduced at the October 30, 2015 hearing, and (3) failed to contact or visit Mr. Lindsey.

Response at 2-4.




                                            -3-
                                    II. DISCUSSION

                                 A. Sentence Reduction

1. Standard of Review

       “The scope of a district court’s authority in a sentencing modification proceeding

under § 3582(c)(2) is a question of law that we review de novo. We review a denial of a

§ 3582(c)(2) motion for abuse of discretion.” United States v. Lucero, 713 F.3d 1024,

1026 (10th Cir. 2013) (quotations, citation, and brackets omitted).

2. Legal Standard

       Federal courts are generally prohibited from “modify[ing] a term of imprisonment

once it has been imposed.” 18 U.S.C. § 3582(c). But when the sentence is “based on a

sentencing range that has subsequently been lowered by the Sentencing Commission,”

district courts “may reduce the term of imprisonment, after considering the factors set

forth in section 3553(a) to the extent that they are applicable.” Id. § 3582(c)(2).

       Amendment 782 to the Guidelines went into effect on November 1, 2014,

U.S.S.G. app. C suppl., amend. 782 at 74 (2015), and “reduced the base offense levels

assigned to drug quantities in U.S.S.G. § 2D1.1, effectively lowering the Guidelines

minimum sentences for drug offenses.” United States v. Goodwin, No. 15-3054, 2015

WL 7974633, at *2 (10th Cir. Dec. 7, 2015) (unpublished); see 10th Cir. R. 32.1(A)

(permitting citation to unpublished decisions for their persuasive value). The amendment

applies retroactively. U.S.S.G. § 1B1.10(a)(2)(A), (d); United States v. Kurtz, No. 15-

2140, 2016 WL 1212066, at *3 (10th Cir. Mar. 29, 2016).




                                             -4-
       Although an amendment to the Guidelines make a prisoner “eligible for a sentence

reduction under § 3582(c)(2),” it “in no way creates a right to sentence reduction.”

United States v. Osborn, 679 F.3d 1193, 1195-96 (10th Cir. 2012) (emphasis in original).

3. Analysis

       The sole basis for Mr. Lindsey’s motion for reduction was that he did not pose a

danger to public safety. See 18 U.S.C. § 3553(a)(2)(c) (stating district courts “shall

consider” “the need for the sentence imposed . . . to protect the public from further crimes

of the defendant”). The district court considered the § 3553(a) factors and concluded a

sentence reduction was not warranted. In particular, the court determined Mr. Lindsey

posed a threat to the public based on his violent past and history of prison misconduct.

       Consistent with § 3582(c)(2), the court considered the § 3553(a) factors in

analyzing whether to reduce the sentence and “state[d] the reasons for its actions.”

United States v. Dorrough, 84 F.3d 1309, 1311 (10th Cir. 1996). We have reviewed the

record and discern no basis to conclude the district court abused its discretion in denying

Mr. Lindsey’s motion for reduction of sentence.

                         B. Ineffective Assistance of Counsel

       Mr. Lindsey contends his appellate counsel was ineffective. In United States v.

Galloway, we stated, “Ineffective assistance of counsel claims should be brought in

collateral proceedings, not on direct appeal. Such claims brought on direct appeal are

presumptively dismissible, and virtually all will be dismissed.” 56 F.3d 1239, 1240 (10th

Cir. 1995). There are “rare instances” when “an ineffectiveness of counsel claim may

need no further development prior to review on direct appeal.” Id. This is not one of


                                             -5-
them. There is no developed record or district court opinion on the matter. Mr. Lindsey

must raise the argument in a collateral proceeding.

                                   III. CONCLUSION

      Our independent review of the record uncovered no potentially meritorious

arguments. We therefore grant counsel’s motion to withdraw and dismiss this appeal.

                                             ENTERED FOR THE COURT,



                                             Scott M. Matheson, Jr.
                                             Circuit Judge




                                            -6-
