                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 18, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 08-5164
 v.                                             (D.C. No. 04-CR-00202-HE-1)
                                                        (N.D. Okla.)
 ANTONIO J. ARMSTRONG,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and HOLMES, Circuit Judges. **


      Defendant-Appellant Antonio Armstrong appeals the district court’s order

granting in part Mr. Armstrong’s motion for a reduced sentence pursuant to 18

U.S.C. § 3582(c). Counsel has filed an Anders brief indicating no meritorious

issues for appeal. See Anders v. California, 386 U.S. 738 (1967). The certificate

of service indicates that Mr. Armstrong was served by mail with a copy of the


      *
        This order and judgment is not binding precedent, except under the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.
Anders brief, Anders Br. at 10, and on January 7, 2009, we sent a letter to Mr.

Armstrong pursuant to local rule indicating that he could respond, see 10th Cir. R.

46.4(B)(2). He has yet to file a response. For the reasons set forth below, we

dismiss the appeal and grant counsel’s motion to withdraw.

      On April 28, 2005, a jury found Mr. Armstrong guilty of being a felon in

possession of a firearm (count 1) and possession of five or more grams of cocaine

base with intent to distribute (count 2). I R. Doc. 63 at 1. Mr. Armstrong was

sentenced to 120 months’ imprisonment on the first count and 150 months’

imprisonment on the second count, to run concurrently, followed by eight years’

supervised release. 1 I R. Doc. 63 at 2-3. On August 26, 2005, Mr. Armstrong

appealed, I R. Doc. 64, and on June 30, 2006, we affirmed. United States v.

Armstrong, 183 F. App’x 711 (10th Cir. 2006).

      On August 31, 2007, Mr. Armstrong, appearing pro se, filed a motion

pursuant to 28 U.S.C. § 2255. I R. Doc. 80. Additionally, on March 24, 2008,

Mr. Armstrong filed a pro se motion for reduction of sentence pursuant to 18

U.S.C. § 3582(c)(2). I R. Doc. 83. Subsequently, the district court appointed

counsel for Mr. Armstrong with respect to the motion for sentence reduction. I R.

Doc. 87 at 1-2. On October 9, 2008, the district court addressed both the § 2255


      1
        With a total offense level of 28 and a criminal history category of V, the
PSR identified a sentencing range of 130 to 162 months’ imprisonment. II R.
Doc. at 15 (PSR). The statutory minimum for both the first and second counts
was ten years. Id.

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and § 3582 motions in a single order, dismissing the § 2255 claims, but granting

in part Mr. Armstrong’s motion for a reduced sentence. I R. Doc. 97. Regarding

§ 3582(c)(2), the district court reduced Mr. Armstrong’s sentence related to count

2 (the drug count) to 137 months, the top of the amended (reduced) guideline

range, but left his sentence regarding count 1 (the gun count) unchanged. I R.

Doc. 97 at 17. 2 The district court declined to consider other arguments for a

variance based on recent amendments pertaining to the computation of criminal

history or a variance below the amended guideline range based upon United

States v. Booker, 543 U.S. 220 (2005). I R. Doc. 97 at 14-16. Mr. Armstrong

appealed the dismissal of his § 2255 claims, and the clerk dismissed that appeal

for lack of prosecution. United States v. Armstrong, 08-5179 (Order) (10th Cir.

April 17, 2009). Before us is Mr. Armstrong’s appeal of the portion of the

district court’s order addressing his § 3582(c)(2) motion.

      When counsel submits an Anders brief indicating potentially appealable

issues accompanied by a motion to withdraw, we “conduct a full examination of

the record to determine whether defendant’s claims are wholly frivolous.” United

States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). After reviewing the

record, we agree with counsel’s assessment that no potential meritorious issues


      2
         Although the district court initially identified the amended guideline
range to be 110-137 months, the court further noted that the amended range could
not fall below the statutory minimum for the drug offense, making the applicable
range in this case 120-137 months. I R. Doc. 97 at 14-16.

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exist on appeal.

      This court has foreclosed the argument that a district court has discretion to

modify a sentence below the amended guideline range, here the statutory ten year

minimum on the drug count, or conduct a complete resentencing. See United

States v. Pedraza, 550 F.3d 1218, 1221-22 (10th Cir. 2008); United States v.

Rhodes, 549 F.3d 833, 840-41 (10th Cir. 2008). Second, the district court

properly identified on the record the § 3553(a) factors it considered in imposing

the modified sentence. See 18 U.S.C. § 3582(c)(2) (requiring a district court to

consider the factors set forth in § 3553(a) to the extent applicable before reducing

a sentence). The district court identified Mr. Armstrong’s criminal history, public

safety, and the need for deterrence in arriving at the proper sentence. I R. Doc.

97 at 16-17. Finally, the record contains no evidence that the district court

abused its discretion in imposing a modified sentence at the upper limit of the

modified range or that the court incorrectly calculated the revised range.

      APPEAL DISMISSED. The motion to withdraw by counsel is GRANTED.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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