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

                             FOR THE TENTH CIRCUIT                          May 12, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                        No. 15-6147
                                                  (D.C. No. 5:05-CR-00068-C-1)
CLEO PATTERSON,                                           (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.
                 _________________________________

      In 2005, Cleo Patterson was convicted of two counts: (1) possession with

intent to distribute 25.92 kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1);

and (2) traveling in interstate commerce with the intent to promote a business

enterprise involving controlled substances and to further that enterprise by

transporting about 25.92 kilograms of cocaine, in violation of 18 U.S.C. § 1952(a)(3).

The 2004 edition of the Sentencing Guidelines was used to compute Patterson’s

sentence. Under the Presentence Investigation Report (PSR), Patterson was found to

      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
be responsible for 22.29 kilograms of cocaine, yielding a base offense level of 34

under U.S.S.G. § 2D1.1. In addition, Patterson qualified as a career offender under

U.S.S.G. § 4B1.1, which raised his offense level to 37. With a criminal history

category of VI and an offense level of 37, Patterson’s advisory guideline range for

the drug conviction was 360 months to life imprisonment. Because the government

filed an Information under 21 U.S.C. § 851, Patterson’s statutory mandatory

minimum sentence was set at 20 years. Patterson’s advisory guideline range for the

transportation conviction was 60 months, limited by a statutory mandatory maximum

sentence of 5 years under 18 U.S.C. § 1952(a)(3)(A).

      Patterson objected to the PSR on numerous bases, including opposing

application of the career-offender enhancement. The district judge adopted the PSR

without change and sentenced Patterson to 360 months on the drug conviction and 60

months on the racketeering conviction, to run concurrently. The district judge also

imposed 5 years of supervised release (3 on the transportation count to run

concurrently) after Patterson’s incarceration.

      On September 20, 2013, the United States asked for a sentence reduction under

Fed. R. Crim. P. 35(b) and 18 U.S.C. § 3553(e) for Patterson’s substantial assistance.

Patterson was resentenced to 180 months on the drug conviction. His new sentence

was set 15 years lower than the bottom of the advisory range under the career-

offender guideline range, and 5 years below the otherwise-applicable statutory

mandatory minimum.



                                           2
      In 2014, the Sentencing Commission adopted Amendment 782 to the

Sentencing Guidelines, reducing the offense level for certain drug crimes by two

levels. Amendment 782 affected § 2D1.1 and § 2D1.11 of the guidelines and applies

retroactively. On November 3, 2014, Patterson filed a motion to modify his sentence

and counsel was appointed to assist him. The Probation Office concluded that

Patterson was ineligible for a reduction because the PSR had calculated his total

offense level under the career-offender guideline, § 4B1.1, not drug guideline

§ 2D1.1, which Amendment 782 affected.

      In response, Patterson argued that he was entitled to resentencing under

18 U.S.C. § 3582(c)(2) because (1) Patterson’s career-offender status no longer

controlled once he was resentenced below the career-offender guideline, or, in the

alternative, (2) because reading § 1B1.10’s definition of “applicable guideline range”

as the range that corresponds to the offense level and criminal history category before

any departures or variances would violate the Ex Post Facto Clause. The district

court rejected both arguments.

      On appeal, Patterson’s appointed counsel has filed an Anders brief and moved

to withdraw, explaining that she had reviewed the record and relevant case law and

determined the appeal to be wholly frivolous. See Anders v. California, 386 U.S. 738,

744 (2007). Patterson has filed a motion in response to counsel’s Anders brief, but he

has not raised additional legal arguments. Exercising jurisdiction under 18 U.S.C.

§ 3231, we affirm and grant counsel’s motion to withdraw.



                                          3
      Because defense counsel has submitted an Anders brief, our task is to “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) (citing

Anders, 386 U.S. at 744). “Frivolous means ‘[l]acking a legal basis or legal merit; not

serious; not reasonably purposeful.’” United States v. Lain, 640 F.3d 1134, 1137

(10th Cir. 2011) (alteration in original) (quoting Frivolous, Black’s Law Dictionary

(8th ed. 2004). “We review de novo the district court’s interpretation of . . . the

sentencing guidelines.” United States v. Sharkey, 543 F.3d 1236, 1238 (10th Cir.

2008) (quoting United States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997)).

      As the district court correctly noted, both of Patterson’s arguments are

foreclosed by our precedent. In United States v. Corber, 596 F.3d 763 (2010), we

squarely held that

      for the purposes of a sentence modification under § 3582(c)(2), the
      “applicable guideline range” and the range upon which the sentence is
      “based” is, as a matter of law, the range produced under the guidelines’
      sentencing table after a correct determination of the defendant’s total
      offense level and criminal history category but prior to any
      discretionary variances.

Id. at 768. Thus, as in Corber, Patterson’s “applicable guideline range” is the career-

offender guideline, which was not affected by Amendment 782. See id. (finding that

Amendment 706, a similar amendment to the drug guidelines, did not apply to

Corber, who had been sentenced under the career-offender guideline). It is irrelevant

that Patterson actually received a sentence below the career-offender guideline range:




                                          4
the “applicable guideline range” remains the same. We affirm the ruling of the

district court and grant counsel’s motion to withdraw.

         Appellant filed the opening brief and a number of documents under seal. In

response to an order to show cause, both Appellant and the government responded in

support of sealing the materials. Given the safety concerns arising from Patterson’s

substantial assistance, filing under seal is narrowly tailored to serve safety interests.

See Press-Enter. Co. v. Superior Court of Cal., 464 U.S. 501, 510 (1984) (“The

presumption of openness may be overcome only by an overriding interest based on

findings that closure is essential to preserve higher values and is narrowly tailored to

serve that purpose.”); see United States v. A.B., 529 F.3d 1275, 1275 n.* (10th Cir.

2008).




                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




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