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

                             FOR THE TENTH CIRCUIT                               April 27, 2016
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 15-4129
                                                  (D.C. No. 1:11-CR-00044-TS-DBP-1)
ISMAEL CASILLAS-CORALES,                                        (D. Utah)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

       Federal prisoner Ismael Casillas-Corales appeals the district court’s order granting

him a three-month reduction in his sentence under 18 U.S.C. § 3582(c)(2). Exercising

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.

                                   I. BACKGROUND

       In 2011, Mr. Casillas-Corales pled guilty to one count of possessing

methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The

       *
         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 This order and judgment is not binding precedent,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.
district court calculated his total offense level as 32 and placed him in criminal history

category I, yielding an advisory Guidelines range of 121 to 151 months. On June 12,

2012, the district court sentenced Mr. Casillas-Corales to 100 months in prison, followed

by five years of supervised release. He did not appeal that sentence.

       On July 31, 2015, Mr. Casillas-Corales filed a motion to reduce his sentence under

18 U.S.C. § 3582(c), to which the Government stipulated. The motion was based on

Amendment 782 to the U.S. Sentencing Guidelines (“U.S.S.G.”), which retroactively

“reduced the base offense levels assigned to drug quantities in U.S.S.G. § 2D1.1,

effectively lowering the Guidelines minimum sentences for drug offenses.” United States

v. Kurtz, --- F.3d ---, ---, 2016 WL 1212066, at *3 (10th Cir. Mar. 29, 2016) (quotation

omitted). According to the motion, Mr. Casillas-Corales’s revised Guidelines range

under Amendment 782 was 97 to 121 months. He therefore asked the district court to

reduce his sentence to 97 months’ imprisonment.

       The district court granted the motion on August 10, 2015, reducing Mr. Casillas-

Corales’ sentence to 97 months. Moving pro se, Mr. Casillas-Corales placed a notice of

appeal in the prison’s legal mail system on September 3, 2015, and it was docketed by the

district court on September 8, 2015. We appointed the Federal Public Defender for the

District of Utah to represent Mr. Casillas-Corales on appeal.

       On December 9, 2015, counsel filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), which

       authorizes counsel to request permission to withdraw where counsel
       conscientiously examines a case and determines that any appeal would be
       wholly frivolous. Under Anders, counsel must submit a brief to the client


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       and the appellate court indicating any potential appealable issues based on
       the record. The client may then choose to submit arguments to the court.
       The Court must then conduct a full examination of the record to determine
       whether defendant’s claims are wholly frivolous. If the court concludes
       after such an examination that the appeal is frivolous, it may grant
       counsel’s motion to withdraw and may dismiss the appeal.

Kurtz, 2016 WL 1212066, at *2 (quotation omitted). The clerk sent Mr. Casillas-Corales

a copy of counsel’s Anders brief, along with a letter informing him he had 30 days in

which to file any objections to dismissal of his appeal. The 30-day deadline passed

without any submission from Mr. Casillas-Corales.

                                    II. DISCUSSION

                                     A. Jurisdiction

       A criminal defendant’s notice of appeal “must be filed in the district court within

14 days after the later of: (i) the entry of either the judgment or the order being appealed;

or (ii) the filing of the government’s notice of appeal.” Fed. R. App. P. 4(b)(1)(A). Mr.

Casillas-Corales’s notice of appeal was filed on September 8, 2015—29 days after the

district court entered its order denying his § 3582(c) motion. His notice was therefore

untimely. See United States v. McCalister, 601 F.3d 1086, 1087 (10th Cir. 2010) (“This

court has specifically held that a § 3582(c)(2) motion is a continuation of the prior

criminal proceeding.” (quotation omitted)).

       But “Rule 4(b)(1)(A) is a non-jurisdictional claim-processing rule.” United States

v. Garduno, 506 F.3d 1287, 1290 (10th Cir. 2007). As a result, a Rule 4(b)(1)(A) defense

“may be forfeited if not properly raised by the government.” Id. at 1291. Here, the

Government has not responded to Mr. Casillas-Corales’s appeal. We therefore “exercise



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our discretion to hear the appeal.” United States v. Bell, --- F. App’x ---, ---, 2016 WL

1169113, at *1 n.2 (10th Cir. Mar. 25, 2016) (unpublished); see also United States v.

Evans, --- F. App’x ---, ---, 2016 WL 851759, at *1 n.2 (10th Cir. Mar. 4, 2016)

(unpublished).1

                                       B. Merits

1. Standard of Review

       “The scope of a district court’s authority in a sentencing modification proceeding

under § 3582(c)(2) is a question of law that we review de novo. We review a denial of a

§ 3582(c)(2) motion for abuse of discretion.” United States v. Lucero, 713 F.3d 1024,

1026 (10th Cir. 2013) (brackets, citation, and quotation omitted).

       “When counsel submits an Anders brief, our review of the record is de novo.”

Kurtz, 2016 WL 1212066, at *2.

2. Background Law

       We have described the law governing § 3582(c) motions as follows:

              “Generally, federal courts are prohibited from ‘modifying a term of
       imprisonment once it has been imposed.’” Lucero, 713 F.3d at 1026
       (quoting 18 U.S.C. § 3582(c)). But “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 Commission,” district
       courts “may reduce the term of imprisonment, after considering the factors
       set forth in section 3553(a) to the extent that they are applicable.”
       § 3582(c)(2). Any reduction the court orders must be “consistent with
       applicable policy statements issued by the Sentencing Commission.” Id.


       1
         We find the reasoning of these unpublished opinions, though not precedential, to
be instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are not precedential, but
may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.


                                             -4-
               The policy statement that governs § 3582(c)(2) motions is § 1B1.10.
       Under that provision, a court considering a sentence-reduction motion
       “determines the amended guideline range that would have been applicable
       to the defendant if the amendment(s) to the guidelines . . . had been in
       effect at the time the defendant was sentenced.” U.S. Sentencing Guidelines
       Manual (“U.S.S.G.”) § 1B1.10(b)(1) (U.S. Sentencing Comm’n 2014).
       Only amendments that “have the effect of lowering the defendant’s
       applicable guideline range” may be used to obtain § 3582(c)(2) relief. Id.
       § 1B1.10(a)(2)(B). And “the court shall not reduce the defendant’s term of
       imprisonment . . . to a term that is less than the minimum of the amended
       guideline range.” Id. § 1B1.10(b)(2)(A).

Id. (brackets omitted).

       As explained above, Amendment 782 to the Guidelines, which went into effect on

November 1, 2014, retroactively “reduced the base offense levels assigned to drug

quantities in U.S.S.G. § 2D1.1, effectively lowering the Guidelines minimum sentences

for drug offenses.” Id. at *3 (quotation omitted).

3. Analysis

       We are unclear as to the basis for Mr. Casillas-Corales’s appeal. He does not

dispute that under Amendment 782, his revised Guidelines range is 97 to 121 months of

imprisonment. Under U.S.S.G. § 1B1.10(b)(2)(A), the district court lacked authority to

impose a sentence below the lower bound of this range. To the extent Mr.

Casillas-Corales appeals because he believes the district court should have reduced his

sentence further, the court was powerless to do so.

       In his Anders brief, counsel “raised for [our] consideration” the question whether

the “district court erroneously failed to reduce . . . Mr. Casillas-Corales’ sentence below

the new Sentencing Guidelines range in violation of his right to a jury trial.” Doc.

10326302 at 3-4. Counsel suggests the district court may have erred when it “treated


                                             -5-
Amendment 782 as mandatory and thus depriving it of sentencing discretion in violation

of [United States v. Booker, 543 U.S. 220 (2005)].” Id. at 5. In other words, counsel

proposes that because the bar on sentences below the amended range appears in the

Guidelines, which Booker rendered advisory, the district court was free to impose a

sentence lower than 97 months.

       But as counsel concedes, the Supreme Court has expressly rejected this argument.

The Court held in Dillon v. United States, 560 U.S. 817 (2010), that Booker does not

“require[] treating § 1B1.10(b) as nonbinding.” 560 U.S. at 819. The Court explained

that “proceedings under § 3582(c)(2) do not implicate the Sixth Amendment right to have

essential facts found by a jury beyond a reasonable doubt.” Id. at 828. Dillon remains

good law, and we are not free to disregard it.

       We do not detect any other possible bases for reversing the district court’s order.

Having “conduct[ed] a full examination of the record,” we conclude Mr.

Casillas-Corales’s appeal is “wholly frivolous.” Kurtz, 2016 WL 1212066, at *2

(quotation omitted). We therefore dismiss this appeal and grant counsel’s motion to

withdraw.

                                          ENTERED FOR THE COURT,



                                          Scott M. Matheson, Jr.
                                          Circuit Judge




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