United States v. Lindsey , 651 F. App'x 829 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 7, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-2212
(D.C. No. 2:01-CR-00588-MCA-3)
VICTOR LINDSEY, (D. N. Mex.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
_________________________________
Federal prisoner Victor Lindsey appeals the district court’s denial of his motion
for a sentence reduction under 18 U.S.C. § 3582(c)(2). His appointed counsel has
submitted an Anders brief stating this appeal presents no non-frivolous grounds for
reversal. We have carefully reviewed the record, and we agree. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
*
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 This order and judgment is not binding precedent,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.
I. BACKGROUND
A. Conviction and Sentence
In 2002, Mr. Lindsey was convicted of possession and distribution of cocaine base
and marijuana, two firearm offenses, and conspiracy. The district court sentenced him to
181 months in prison. When his federal sentence ends in July 2016, he will begin a life
sentence in Michigan state prison for a murder conviction. Mr. Lindsey has an extensive
history of prison misconduct, including eight instances of mail abuse. United States v.
Lindsey, No. 2:01-cr-00588-MCA (D.N.M. 2003), ECF No. 412-1 at 3-21 (listing Mr.
Lindsey’s disciplinary actions).
B. Motion to Reduce Sentence
Mr. Lindsey has filed seven motions seeking a sentence reduction. Id., ECF Nos.
350, 373, 396, 399, 402, 404, 406. This appeal arises out of the district court’s denial of
his § 3582(c)(2) motion filed on January 20, 2015, which sought a reduction based on
Amendment 782.
On October 16, 2015, the court held a motion hearing. Mr. Lindsey, through
counsel, contended he did not pose a threat to public safety because his life sentence in
Michigan prison will begin immediately after his federal imprisonment ends.
On October 30, 2015, the district court denied the motion after considering the 18
U.S.C. § 3553(a) factors and concluding Mr. Lindsey did not warrant a sentence
reduction based on his criminal history and prison misconduct.
On November 9, 2015, Mr. Lindsey filed a notice of appeal.
-2-
C. Anders Brief
On March 28, 2016, Mr. Lindsey’s appointed 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
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.
United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citations omitted).
Counsel indicated “[t]he only potential issue is whether the District Court abused
its discretion in denying Mr. Lindsey’s motion for reduction of sentence.” Anders Brief
at 4. But counsel stated that argument was not meritorious and therefore sought to
withdraw given the absence of non-frivolous arguments on appeal.
D. Mr. Lindsey’s Response
Mr. Lindsey filed a response to the Anders brief. He argues his appellate counsel
has been ineffective because he (1) failed to investigate “newly discovered evidence,”
(2) filed the Anders brief even though he argued Mr. Lindsey’s sentence should be
reduced at the October 30, 2015 hearing, and (3) failed to contact or visit Mr. Lindsey.
Response at 2-4.
-3-
II. DISCUSSION
A. Sentence Reduction
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) (quotations, citation, and brackets omitted).
2. Legal Standard
Federal courts are generally prohibited from “modify[ing] a term of imprisonment
once it has been imposed.” 18 U.S.C. § 3582(c). But when the sentence is “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.” Id. § 3582(c)(2).
Amendment 782 to the Guidelines went into effect on November 1, 2014,
U.S.S.G. app. C suppl., amend. 782 at 74 (2015), and “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. Goodwin, No. 15-3054, 2015
WL 7974633, at *2 (10th Cir. Dec. 7, 2015) (unpublished); see 10th Cir. R. 32.1(A)
(permitting citation to unpublished decisions for their persuasive value). The amendment
applies retroactively. U.S.S.G. § 1B1.10(a)(2)(A), (d); United States v. Kurtz, No. 15-
2140, 2016 WL 1212066, at *3 (10th Cir. Mar. 29, 2016).
-4-
Although an amendment to the Guidelines make a prisoner “eligible for a sentence
reduction under § 3582(c)(2),” it “in no way creates a right to sentence reduction.”
United States v. Osborn, 679 F.3d 1193, 1195-96 (10th Cir. 2012) (emphasis in original).
3. Analysis
The sole basis for Mr. Lindsey’s motion for reduction was that he did not pose a
danger to public safety. See 18 U.S.C. § 3553(a)(2)(c) (stating district courts “shall
consider” “the need for the sentence imposed . . . to protect the public from further crimes
of the defendant”). The district court considered the § 3553(a) factors and concluded a
sentence reduction was not warranted. In particular, the court determined Mr. Lindsey
posed a threat to the public based on his violent past and history of prison misconduct.
Consistent with § 3582(c)(2), the court considered the § 3553(a) factors in
analyzing whether to reduce the sentence and “state[d] the reasons for its actions.”
United States v. Dorrough, 84 F.3d 1309, 1311 (10th Cir. 1996). We have reviewed the
record and discern no basis to conclude the district court abused its discretion in denying
Mr. Lindsey’s motion for reduction of sentence.
B. Ineffective Assistance of Counsel
Mr. Lindsey contends his appellate counsel was ineffective. In United States v.
Galloway, we stated, “Ineffective assistance of counsel claims should be brought in
collateral proceedings, not on direct appeal. Such claims brought on direct appeal are
presumptively dismissible, and virtually all will be dismissed.” 56 F.3d 1239, 1240 (10th
Cir. 1995). There are “rare instances” when “an ineffectiveness of counsel claim may
need no further development prior to review on direct appeal.” Id. This is not one of
-5-
them. There is no developed record or district court opinion on the matter. Mr. Lindsey
must raise the argument in a collateral proceeding.
III. CONCLUSION
Our independent review of the record uncovered no potentially meritorious
arguments. We therefore grant counsel’s motion to withdraw and dismiss this appeal.
ENTERED FOR THE COURT,
Scott M. Matheson, Jr.
Circuit Judge
-6-