United States v. Rollen , 355 F. App'x 166 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
December 7, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 08-1382
v. (D.C. No. 1:04-CR-00514-EWN-1)
(D. Colo.)
DEON ROLLEN,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO, BALDOCK, and HOLMES, Circuit Judges.
Deon Rollen appeals the district court’s denial of his motion for a sentence
reduction under 18 U.S.C. § 3582(c)(2). Rollen’s appointed counsel in this
appeal filed an Anders brief, seeking permission to withdraw as counsel because
the appeal is “wholly frivolous.” See Anders v. California, 386 U.S. 738, 744
(1967). Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291,
we grant counsel’s motion to withdraw and dismiss the appeal.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
I
In January 2005, a grand jury indicted thirty-one defendants on 137 counts
related to the sale and distribution of illicit drugs. The indictment charged Rollen
with nineteen crack-cocaine-related counts. On the eve of trial, he pled guilty to
all nineteen. In its Memorandum of Sentencing Hearing and Report of Statement
of Reasons (“Sentencing Memorandum”), the district court found that Rollen’s
base offense level was thirty-eight, which the court reduced to thirty-six in light
of Rollen’s acceptance of responsibility. Combining this offense level with a
criminal history category of IV, the court calculated Rollen’s sentencing range as
235 to 293 months. The district court sentenced Rollen to 264 months’
imprisonment. This court affirmed Rollen’s sentence on appeal. United States v.
Rollen, 239 F. App’x 451 (10th Cir. 2007).
On June 12, 2008, Rollen filed a motion to reduce his sentence under
18 U.S.C. § 3582(c)(2), which permits a sentence reduction “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.” Rollen contended his sentencing range had been lowered by an
amendment to the United States Sentencing Guidelines (“USSG”). The district
court denied Rollen’s motion, concluding he was ineligible for a sentence
reduction because the amendment on which he relied did not have the effect of
lowering his applicable USSG range.
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II
Rollen argued to the district court that Amendment 706 to the USSG
qualified him for a sentence reduction. Amendment 706 “generally adjust[ed]
downward by two levels the base offense level assigned to quantities of crack
cocaine.” United States v. Sharkey, 543 F.3d 1236, 1237 (10th Cir. 2008). It
took effect in November 2007, but was subsequently made retroactive. See id.Prior to Amendment 706, a defendant found responsible for 1.5 kilograms or more
of crack cocaine was assigned a base offense level of thirty-eight. See USSG
§ 2D1.1(c)(1) (Drug Quantity Table) (2006). But Amendment 706 revised
§ 2D1.1(c)(1) to apply base offense level thirty-eight only to defendants
responsible for 4.5 kilograms or more of crack cocaine. USSG app. C, amend.
706.
However, merely having 1.5 kilograms or more of crack cocaine attributed
to him during sentencing does not entitle a prisoner to relief. Section 3582(c)(2)
provides that any sentence reduction must be “consistent with applicable policy
statements issued by the Sentencing Commission.” The Sentencing Commission
has issued a policy statement precluding a sentence reduction where an
amendment “does not have the effect of lowering the defendant’s applicable
guideline range.” USSG § 1B1.10(a)(2)(B). Thus, a prisoner may not obtain a
reduction in sentence when he was responsible for 4.5 kilograms or more of crack
cocaine, because a defendant responsible for 4.5 kilograms or more of crack
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cocaine would still receive a base offense level of thirty-eight under the amended
guidelines.
Rollen argued to the district court that the sentencing court found him
responsible for less than 4.5 kilograms of crack cocaine. However, the district
court determined that twelve kilograms of crack cocaine was attributed to Rollen
during sentencing. Consequently, the district court denied Rollen’s motion.
III
This court reviews a district court’s decision to deny a sentence reduction
under § 3582(c)(2) for abuse of discretion. Sharkey, 543 F.3d at 1238. “An
abuse of discretion occurs when the district court bases its ruling on an erroneous
conclusion of law or relies on clearly erroneous fact findings.” Kiowa Indian
Tribe v. Hoover, 150 F.3d 1163, 1165 (10th Cir. 1998).
On appeal, Rollen contends that the district court erred in its reading of the
sentencing court’s drug quantity determination. In his Anders brief, Rollen’s
appellate counsel contends this issue is frivolous. Rollen has chosen not to offer
additional argument to the court.
In Anders, the Supreme Court directed that “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. Counsel must
submit to the court and his or her client a brief addressing “anything in the record
that might arguably support the appeal.” Id. When counsel submits an Anders
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brief 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). If we concur in counsel’s
evaluation of the case, we may grant the request to withdraw and dismiss the
appeal. See Anders, 386 U.S. at 744.
Based on our full examination of the record, Rollen’s argument that the
district court found him responsible for less than 4.5 kilograms of crack cocaine
is frivolous. In its Sentencing Memorandum, the sentencing court considered the
quantity of crack cocaine attributable to him and unambiguously stated that
amount was twelve kilograms. It specifically “conclude[d] that in excess of
eleven kilograms of crack was involved in 2003,” and also found Rollen
responsible for at least one kilogram of crack cocaine during a period in the fall
of 2004. We agree with counsel’s assessment that no meritorious issue exists on
appeal.
IV
We therefore DISMISS Rollen’s appeal and GRANT counsel’s motion for
leave to withdraw.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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