                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                 December 4, 2009
                                 TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                   Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 09-2084
 v.                                           (D.C. No. 1:04-CR-01554-LH-2)
                                                 (District of New Mexico)
 RUDY ARCHULETA,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *

Before HARTZ, SEYMOUR and ANDERSON, Circuit Judges.



      On November 22, 2005, Rudy Archuleta pled guilty to one count of

possession with intent to distribute five grams or more of a mixture and substance

containing a detectable amount of cocaine base, in violation of 21 U.S.C. §

841(a)(1) and (b)(1)(B) (“Count One”); and one count of carrying a firearm

      *
       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); 10th Cir. R. 34.1(G). This 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not binding precedent, except under the doctrines of law of the case, res judicata,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 under the terms and conditions of 10th Cir. R. 32.1 and 10th Cir.
R. 32.1.
during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §

924(c) (“Count Two”). Mr. Archuleta received a sentence of sixty-three months

for Count One, and sixty months for Count Two, to be served consecutively.

      On July 10, 2008, Mr. Archuleta filed a motion to reduce his sentence

pursuant to U.S.S.G. App. C, Amend. 706 (Nov. 1, 2007), made retroactive by

U.S.S.G. App. C, Amend. 713 (Mar. 3, 2008), contending that Amendment 706

entitled him to a two-level reduction in his base offense level. The district court

granted the motion and reduced the sentence for Count One to sixty-months, the

statutorily mandated minimum for the offense of conviction.

      Mr. Archuleta then filed a second motion for modification of sentence

under 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 5K2.0(a)(2)(A) & (B). In his

motion, Mr. Archuleta conceded that the statutorily mandated sixty-month

sentence for Count One was not impacted by Amendment 706, see rec. vol. I, at

38, but nevertheless asserted an entitlement to a downward departure on the basis

that his failing health was not adequately addressed in the original sentencing

proceedings. Id. at 39. The district court dismissed the motion for lack of

jurisdiction, reasoning that the sentence modification statutes do not grant

authority to reduce Mr. Archuleta’s sentence further. Id. at 48.

      This appeal followed. Concluding there were no nonfrivolous grounds to

appeal, Mr. Archuleta’s counsel filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967). Under Anders, “counsel [may] request permission to withdraw

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[from an appeal] where counsel conscientiously examines a case and determines

that any appeal would be wholly frivolous.” United States v. Calderon, 428 F.3d

928, 930 (10th Cir. 2005) (citing Anders, 386 U.S. at 744). This process requires

counsel to:

      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 [c]ourt 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.

Id. (citing Anders, 386 U.S. at 744) (internal citations omitted). We review for

abuse of discretion the district court’s decision to deny a reduction in sentence

under 18 U.S.C. § 3582(c)(2). See United States v. Sharkey, 543 F.3d 1236, 1238

(10th Cir. 2008). For the reasons set out below, we grant counsel’s motion to

withdraw and dismiss the appeal.

      Mr. Archuleta contends on appeal that his modified sixty-month sentence is

unreasonable because the district court failed to adequately consider various

sentencing factors, in particular his failing health, in the original sentencing

proceedings. See Aplt. Br. at 3. It is well established, however, that “[a] district

court is authorized to modify a Defendant’s sentence only in specified instances

where Congress has expressly granted the court jurisdiction to do so.” United

States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996) (citations omitted).

“Section 3582(c) provides that a court may not modify a term of imprisonment

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once it has been imposed except in three limited circumstances.” United States v.

Smartt, 129 F.3d 539, 540-41 (10th Cir. 1997) (listing reasons) (emphasis in

original; citations and internal quotation marks omitted). In particular, medical

condition is not one of the reasons, absent a motion by the Director of the Bureau

of Prisons. Id. at 541. Because none of these circumstances is present here, the

district court correctly dismissed Mr. Archuleta’s request for modification of his

sentence for lack of jurisdiction.

      Our review of the record persuades us that Mr. Archuleta has no

meritorious grounds for appeal. We therefore GRANT counsel’s motion to

withdraw and DISMISS the appeal.


                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




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