                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      October 29, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                                 TENTH CIRCUIT


UNITED STATES OF AMERICA,

      Plaintiff-Appellee,
                                                           No. 08-2134
v.
                                                    (District of New Mexico)
                                                   (D.C. No. 04-CV-2573-JC)
JUAN GONZALES,

      Defendant-Appellant.


                            ORDER AND JUDGMENT *


 Before McWILLIAMS, ANDERSON, and BALDOCK, Senior Circuit Judges.



       On December 28, 2004, a grand jury returned a four-count indictment in the

 United States District Court for the District of Colorado, which indictment, in

 count one, charged Juan Gonzales, the defendant, with being a felon in possession

 of a loaded firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1); in

 count two, he was charged with possession with intent to distribute at least five


       *
         This order and judgment is not binding precedent, except under the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 parties waived oral argument, and this panel has determined
 unanimously that oral argument would not materially assist the determination of
 this appeal. See Fed. R. App. P.34(f); 10th Cir. R. 34.1(G). The case is therefore
 ordered submitted without oral argument.
grams or more of a mixture and substance containing cocaine base, in violation of

21 U.S.C. § 841(a)(1) and 841(b)(1)(B); in count three, he was charged with

possession with an intent to distribute less than 500 grams of a mixture and

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

841(a)(1) and 841(b)(1)(C) and 18 U.S.C. § 2; and in count four, he was charged

with carrying and possessing a loaded firearm in relation to and in furtherance of

the drug trafficking crimes in counts 2 and 3 in violation of 18 U.S.C. § 924(c).

Shortly prior to trial, the defendant, through counsel, filed a motion to suppress

evidence and to disclose the identity of a confidential source. On the morning the

trial was to commence, the district court denied the defendant’s motion to

suppress and the motion for disclosure of the identity of its confidential source,

whereupon the defendant, pursuant to a plea agreement, entered a conditional plea

of guilty to counts two and four. In his plea agreement, the defendant reserved

his right to appeal the District Court’s denial of his motion to suppress and his

motion requiring the Government to disclose the identity of its confidential

source. On March 29, 2006, the district court sentenced defendant to sixty

months imprisonment on count two and sixty months imprisonment on count four,

the two sentences to be served consecutively. The defendant filed a timely notice

of appeal. On appeal, we affirmed in an unpublished opinion. United States v.

Gonzales, No. 06-2112, 229 Fed. Appx. 721 (10th Cir. Apr. 16, 2007)

(unpublished).

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       As indicated, the defendant pled guilty to counts two and four of the

indictment. Count two charged a violation of 21 U.S.C. § 841(a)(1) and 21

U.S.C. § 841(b)(1)(B). 18 U.S.C. § 841(b)(1)(B) provides, inter alia, that the

penalty shall be imprisonment for not less than five years. Count four charged

the defendant with possessing a loaded firearm in furtherance of a drug

trafficking crime in violation of 18 U.S.C. § 924(b). 18 U.S.C. § 924(c)(1)(A)

provides, inter alia, that the penalty therefor shall be not less than five years

which is to be in “addition” to the penalty provided for in 21 U.S.C. 841(b)(1)(B).

In this general connection, the defendant in the plea agreement stated that he

understood that as to count two, he could, inter alia, be imprisoned for not less

than five years and not more than 40 years, and that as to count four, he could be

sentenced to imprisonment for not less than five years which would be

“consecutive to any other term of imprisonment.” It was in this setting that the

District Court sentenced defendant to five years imprisonment on counts two and

four, to be served consecutively. As stated, on direct appeal, we affirmed the

sentence imposed by the District Court.

      On March 1, 2008, the defendant filed in the District Court a pro se Motion

to Modify Term of Imprisonment pursuant to 18 U.S.C. § 3582(c)(2) and a

Memorandum in support thereof. 18 U.S.C. § 3582(c)(2) provides as follows:

             (2) in the case of a defendant who has been sentenced to
             a term of imprisonment based on a sentencing range that
             has subsequently been lowered by the Sentencing

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             Commission pursuant to 28 U.S.C. 994(o), upon motion
             of the defendant or the Director of the Bureau of
             Prisons, or on its own motion, the court may reduce the
             term of imprisonment, after considering the factors set
             forth in section 3553(a) to the extent that they are
             applicable, if such a reduction is consistent with
             applicable policy statements issued by the Sentencing
             Commission.

      In connection with the Motion to Modify, it appears that on November 1,

2007, the United States Sentencing Commission amended the Sentencing

Guidelines and provided for a two-point reduction of one’s base offense level in

certain types of cocaine base offenses. The Government filed a response to

defendant’s Motion to Modify in which it, inter alia, pointed out that the

defendant had not been sentenced under the Guidelines, but was sentenced

pursuant to statutes setting mandatory minimum sentences.

       On May 27, 2008, the District Court denied the defendant’s Motion to

Modify his sentence, and the defendant now appeals the District Court’s denial of

his Motion to Modify. In this Court, the Federal Public Defender’s Office was

appointed to represent the defendant and it later filed an Anders Brief in this

Court, concluding that the appeal was without merit and “wholly frivolous.”

Anders v. California, 386 U.S. 738 (1967). By letter, the Government indicated it

would file no response to defendant’s Anders Brief. A copy of defendant’s

Anders Brief was served on the defendant who filed a pro se “Response to

Appellant’s Counsel’s Motion to Withdraw, Pursuant to 3582(c)(2) Appeal.”


                                         -4-
      Our review of the record before us leads us to conclude, as the Government

has argued, that the defendant was not sentenced under the guidelines, but

pursuant to statute. Hence, the Sentencing Commission’s retroactive application

of a downward modification of the offense level for certain types of drug

violations is irrelevant. The statutes provide for a mandatory minimum sentence

control. Further, in our view, United States v. Booker, 543 U.S. 220 (2005) has

no present application.

      Pursuant to Anders, this appeal is therefore dismissed and counsel’s request

to withdraw is granted.



                                              Entered for the Court



                                              Robert H. McWilliams
                                              Senior Circuit Judge




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