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    United States v. Archuleta, 10th Cir. (2009)

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    Rudy Archuleta pled guilty to possession with intent to distribute cocaine base and carrying a firearm during a drug trafficking crime. He received a sentence of 63 months for the drug charge and 60 months for the firearm charge, to be served consecutively. Archuleta later received a reduction in his drug sentence to the statutory minimum of 60 months under an amendment lowering offense levels for certain drug crimes. He then filed a second motion seeking a further reduction based on failing health, which the district court dismissed for lack of jurisdiction. The appeals court granted his counsel's motion to withdraw, finding no nonfrivolous grounds for appeal because the sentencing statutes do not authorize reducing a sentence except in limited circumstances not present in Archule

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    United States v. Archuleta, 10th Cir. (2009)

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    Rudy Archuleta pled guilty to possession with intent to distribute cocaine base and carrying a firearm during a drug trafficking crime. He received a sentence of 63 months for the drug charge and 60 months for the firearm charge, to be served consecutively. Archuleta later received a reduction in his drug sentence to the statutory minimum of 60 months under an amendment lowering offense levels for certain drug crimes. He then filed a second motion seeking a further reduction based on failing health, which the district court dismissed for lack of jurisdiction. The appeals court granted his counsel's motion to withdraw, finding no nonfrivolous grounds for appeal because the sentencing statutes do not authorize reducing a sentence except in limited circumstances not present in Archule

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    Filed: 2009-12-04 Precedential Status: Non-Precedential Docket: 09-2084

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    Rudy Archuleta pled guilty to possession with intent to distribute cocaine base and carrying a firearm during a drug trafficking crime. He received a sentence of 63 months for the drug charge and 60 months for the firearm charge, to be served consecutively. Archuleta later received a reduction in his drug sentence to the statutory minimum of 60 months under an amendment lowering offense levels for certain drug crimes. He then filed a second motion seeking a further reduction based on failing health, which the district court dismissed for lack of jurisdiction. The appeals court granted his counsel's motion to withdraw, finding no nonfrivolous grounds for appeal because the sentencing statutes do not authorize reducing a sentence except in limited circumstances not present in Archule

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    15 views4 pages

    United States v. Archuleta, 10th Cir. (2009)

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    Scribd Government Docs
    Rudy Archuleta pled guilty to possession with intent to distribute cocaine base and carrying a firearm during a drug trafficking crime. He received a sentence of 63 months for the drug charge and 60 months for the firearm charge, to be served consecutively. Archuleta later received a reduction in his drug sentence to the statutory minimum of 60 months under an amendment lowering offense levels for certain drug crimes. He then filed a second motion seeking a further reduction based on failing health, which the district court dismissed for lack of jurisdiction. The appeals court granted his counsel's motion to withdraw, finding no nonfrivolous grounds for appeal because the sentencing statutes do not authorize reducing a sentence except in limited circumstances not present in Archule

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    of 4

    FILED

    United States Court of Appeals


    Tenth Circuit

    UNITED STATES COURT OF APPEALS

    December 4, 2009

    TENTH CIRCUIT

    Elisabeth A. Shumaker
    Clerk of Court

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    No. 09-2084
    (D.C. No. 1:04-CR-01554-LH-2)
    (District of New Mexico)

    v.
    RUDY ARCHULETA,
    Defendant-Appellant.

    ORDER AND JUDGMENT *


    Before HARTZ, SEYMOUR and ANDERSON, Circuit Judges.

    On November 22, 2005, Rudy Archuleta pled guilty to one count of


    possession with intent to distribute five grams or more of a mixture and substance
    containing a detectable amount of cocaine base, in violation of 21 U.S.C.
    841(a)(1) and (b)(1)(B) (Count One); and one count of carrying a firearm
    *

    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). This 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 under the terms and conditions of 10th Cir. R. 32.1 and 10th Cir.
    R. 32.1.

    during and in relation to a drug trafficking crime, in violation of 18 U.S.C.


    924(c) (Count Two). Mr. Archuleta received a sentence of sixty-three months
    for Count One, and sixty months for Count Two, to be served consecutively.
    On July 10, 2008, Mr. Archuleta filed a motion to reduce his sentence
    pursuant to U.S.S.G. App. C, Amend. 706 (Nov. 1, 2007), made retroactive by
    U.S.S.G. App. C, Amend. 713 (Mar. 3, 2008), contending that Amendment 706
    entitled him to a two-level reduction in his base offense level. The district court
    granted the motion and reduced the sentence for Count One to sixty-months, the
    statutorily mandated minimum for the offense of conviction.
    Mr. Archuleta then filed a second motion for modification of sentence
    under 18 U.S.C. 3582(c)(2) and U.S.S.G. 5K2.0(a)(2)(A) & (B). In his
    motion, Mr. Archuleta conceded that the statutorily mandated sixty-month
    sentence for Count One was not impacted by Amendment 706, see rec. vol. I, at
    38, but nevertheless asserted an entitlement to a downward departure on the basis
    that his failing health was not adequately addressed in the original sentencing
    proceedings. Id. at 39. The district court dismissed the motion for lack of
    jurisdiction, reasoning that the sentence modification statutes do not grant
    authority to reduce Mr. Archuletas sentence further. Id. at 48.
    This appeal followed. Concluding there were no nonfrivolous grounds to
    appeal, Mr. Archuletas counsel filed a brief pursuant to Anders v. California, 386
    U.S. 738 (1967). Under Anders, counsel [may] request permission to withdraw
    -2-

    [from an appeal] where counsel conscientiously examines a case and determines


    that any appeal would be wholly frivolous. United States v. Calderon, 428 F.3d
    928, 930 (10th Cir. 2005) (citing Anders, 386 U.S. at 744). This process requires
    counsel to:
    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 [c]ourt must then
    conduct a full examination of the record to determine whether
    defendants claims are wholly frivolous. If the court concludes after
    such an examination that the appeal is frivolous, it may grant
    counsels motion to withdraw and may dismiss the appeal.
    Id. (citing Anders, 386 U.S. at 744) (internal citations omitted). We review for
    abuse of discretion the district courts decision to deny a reduction in sentence
    under 18 U.S.C. 3582(c)(2). See United States v. Sharkey, 543 F.3d 1236, 1238
    (10th Cir. 2008). For the reasons set out below, we grant counsels motion to
    withdraw and dismiss the appeal.
    Mr. Archuleta contends on appeal that his modified sixty-month sentence is
    unreasonable because the district court failed to adequately consider various
    sentencing factors, in particular his failing health, in the original sentencing
    proceedings. See Aplt. Br. at 3. It is well established, however, that [a] district
    court is authorized to modify a Defendants sentence only in specified instances
    where Congress has expressly granted the court jurisdiction to do so. United
    States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996) (citations omitted).
    Section 3582(c) provides that a court may not modify a term of imprisonment
    -3-

    once it has been imposed except in three limited circumstances. United States v.
    Smartt, 129 F.3d 539, 540-41 (10th Cir. 1997) (listing reasons) (emphasis in
    original; citations and internal quotation marks omitted). In particular, medical
    condition is not one of the reasons, absent a motion by the Director of the Bureau
    of Prisons. Id. at 541. Because none of these circumstances is present here, the
    district court correctly dismissed Mr. Archuletas request for modification of his
    sentence for lack of jurisdiction.
    Our review of the record persuades us that Mr. Archuleta has no
    meritorious grounds for appeal. We therefore GRANT counsels motion to
    withdraw and DISMISS the appeal.

    ENTERED FOR THE COURT

    Stephanie K. Seymour
    Circuit Judge

    -4-

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