                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                      UNITED STATES COURT OF APPEALS                February 17, 2017
                                                                   Elisabeth A. Shumaker
                                   TENTH CIRCUIT
                                                                       Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 16-2193
 v.                                           (D.C. No. 1:11-CR-00889-MCA-1)
                                                           (D.N.M.)
 OMAR MOISES AVILA,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY and MATHESON, Circuit Judges. **


      Defendant-Appellant Omar Moises Avila appeals from the district court’s


      *
        This order and judgment is not binding precedent, except under the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.
      **
        The Honorable Neil Gorsuch sat previously but did not participate in this
order and judgment. The practice of this court permits the remaining two panel
judges if in agreement to act as a quorum in resolving the appeal. See 28 U.S.C.
§46(d); see also United States v. Wiles, 106 F.3d 1516, 1516 n.* (10th Cir. 1997)
(noting this court allows remaining panel judges to act as a quorum to resolve an
appeal); Murray v. Nat’l Broad. Co., 35 F.3d 45, 48 (2d Cir. 1994), cert. denied,
513 U.S. 1082 (1995) (remaining two judges of original three judge panel may
decide petition for rehearing without third judge). After examining the briefs and
the appellate record, this 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.
dismissal of his motion for a sentence reduction based upon Amendment 782 to

the United States Sentencing Guidelines. 18 U.S.C. § 3582(c)(2); 1 R. 26–27

(motion); id. at 40 (order). Mr. Avila’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 28 U.S.C. § 1291, and we dismiss the

appeal and grant counsel’s motion to withdraw.

      In 2011, Mr. Avila pled guilty to possession with intent to distribute

methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and to

reentry of a removed alien, in violation of 8 U.S.C. § 1326(a) and (b). 1 R.

11–20. The presentence report listed his initial base offense level as 34 for the

drug offense. This was reduced to a total offense level of 26 following the

application of downward adjustments for a mitigating role, being a minor

participant, and acceptance of responsibility. 2 R. 7–9. When combined with a

criminal history category of V, this resulted in a guideline imprisonment range of

110 to 137 months. Id. at 23. At sentencing, the district court departed

downward to a criminal history category of IV, resulting in a guideline range of

92 to 115 months. 3 R. 15. The court imposed a sentence of 92 months. 1 R. 22.

      On October 9, 2015, Mr. Avila filed a motion for a reduced sentence based

on Amendment 782 of the sentencing guidelines. Id. at 26–27. The district court

entered an order dismissing that motion for lack of jurisdiction because the

change would not lower the sentencing range below what was actually imposed.

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Id. at 40.

       This appeal followed, and on October 17, 2016, Mr. Avila’s counsel filed

an Anders brief. Mr. Avila 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.

Avila nor the government has filed a response.

       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. The 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. Avila’s claims on appeal

are frivolous. Under 18 U.S.C. § 3582(c)(2), a district court may modify a term

of imprisonment if a defendant was sentenced “based on a sentencing range that

has subsequently been lowered.” Amendment 782 would have reduced Mr.

Avila’s base offense level by two levels, meaning that his initial guideline

imprisonment range would have been 100 to 125 months. But Mr. Avila’s actual

sentence of 92 months was not “based” on the sentencing guideline which

Amendment 782 changed; instead, it resulted from the district court’s downward

departure in reducing Mr. Avila’s criminal history category from V to IV. Thus,

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Mr. Avila does not get the benefit of the amendment. As we have noted before,

“a departure is, as a matter of law, a sentence outside the ‘applicable guideline

range.’” United States v. Darton, 595 F.3d 1191, 1196 (10th Cir. 2010) (citation

omitted).

      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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