                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 4, 2016
                      UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 16-7011
 v.                                           (D.C. No. 6:11-CR-00083-RAW-1)
                                                         (E.D. Okla.)
 CARL GENE BRANTLEY,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, McKAY, and MORITZ, Circuit Judges. **


      Defendant-Appellant Carl Gene Brantley appeals from the district court’s

denial of his motion for a sentence reduction based upon Amendment 782 to the

United States Sentencing Guidelines. 18 U.S.C. § 3582(c)(2). Mr. Brantley’s

counsel filed a brief and motion to withdraw pursuant to Anders v. California,

386 U.S. 738 (1967), and 10th Cir. R. 46.4(B)(1). Our jurisdiction arises under


      *
        This order and judgment is not binding precedent, except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2), and we dismiss the appeal and

grant counsel’s motion to withdraw.



                                     Background

         Mr. Brantley was charged with manufacturing marijuana, possession with

intent to distribute marijuana, possession of a firearm in furtherance of a drug

trafficking crime, and drug forfeiture. 1. R. 14–16. In August 2012, in exchange

for the government agreeing to dismiss counts 2 and 3 of the indictment, as well

as a state court charge, Mr. Brantley entered into a plea agreement pursuant to

Fed. R. Crim. Proc. 11(c)(1)(C). In that agreement, the government and Mr.

Brantley also agreed to a specific sentence of 84 months’ imprisonment. 1 Supp.

R. 17.

         The presentence report found that Mr. Brantley’s total offense level was 19

(with a base offense level of 20, a two-point enhancement for possession of a

firearm, and a three-level adjustment for acceptance of responsibility), and that

his corresponding guideline range of imprisonment was 30–37 months. 1. R. PSR

at 4–8. It noted, however, that this range was less than the statutory minimum,

and that therefore the guideline term of imprisonment was for 60 months. Id. at

8.

         The district court accepted and adopted Mr. Brantley’s plea agreement as

written, and thus sentenced him to 84 months of imprisonment and four years of

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supervised release. 1. R. 17–19.

      On January 5, 2015, Mr. Brantley filed a motion for a reduced sentence

based on Amendment 782 of the sentencing guidelines. The district court denied

that motion, finding that Mr. Brantley’s sentence was based on his plea

agreement, not the guidelines. 1. R. 24. Therefore, Amendment 782 did not

apply. Id.

      This appeal followed. On April 26, 2016, Mr. Brantley’s counsel filed an

Anders brief, seeking leave to withdraw as counsel. Mr. Brantley was served

with a copy of that brief and given requisite notice by this court, pursuant to 10th

Cir. R. 46.4(B)(2). Neither Mr. Brantley nor the government has filed a response.



                                     Discussion

      Under Anders, “if counsel finds his case to be wholly frivolous, after a

conscientious examination of it, he should so advise the court and request

permission to withdraw.” 386 U.S. at 744. This court then must conduct its own

examination of the record to determine whether the defendant’s claims are indeed

wholly frivolous. If it agrees with counsel that the claims are frivolous, it may

then grant the motion to withdraw and dismiss the appeal. United States v.

Calderon, 428 F.3d 928, 930 (10th Cir. 2005).

      After examining the record, we conclude that Mr. Brantley’s claims on

appeal are frivolous. Though it is true that if Amendment 782 applied to Mr.

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Brantley that his base offense level would be reduced from 20 to 18, Mr. Brantley

was not sentenced under the applicable guideline range. Instead, the district court

sentenced him in accordance with the terms of his plea agreement. And because

he was sentenced under a Rule 11(c)(1)(C) agreement specifying the number of

months, he is not entitled to the retroactive guidelines adjustment. See United

States v. Graham, 704 F.3d 1275, 1278 (10th Cir. 2013).

      Accordingly, we DISMISS the appeal and GRANT counsel’s motion to

withdraw.

                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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