Professional Documents
Culture Documents
United States Court of Appeals Tenth Circuit
United States Court of Appeals Tenth Circuit
May 5, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT
__________________________
Clerk of Court
v.
JOSE RUBIO,
Defendant-Appellant.
______________________________
ORDER AND JUDGMENT *
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This order and judgment is not binding precedent except under the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.
841(a)(1) and (b)(1)(C), and one count of distribution of more than five grams
of cocaine base, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(B). The district
court sentenced him to 150 months imprisonment on both counts, to run
concurrently. Thereafter, Mr. Rubio filed a motion for reduction of sentence
under 18 U.S.C. 3582(c) in conjunction with Amendment 706 to the United
States Sentencing Guidelines (Guidelines or U.S.S.G.). The district court
denied the motion on grounds it lacked jurisdiction to consider his motion
pursuant to then-Federal Rule of Criminal Procedure 11(e)(1)(C) (now
11(c)(1)(C)). Although Mr. Rubio has filed a pro se appeal of the denial of his
3582 motion, his attorney has filed an Anders brief and moved for permission to
withdraw as counsel. See Anders v. California, 386 U.S. 738, 744 (1967). For
the reasons set forth hereafter, we grant counsels motion to withdraw and dismiss
this appeal. Id.
Mr. Rubio pled guilty, a federal probation officer prepared a presentence report in
conjunction with the Guidelines to determine his recommended sentence.
Because Mr. Rubio was at least eighteen years old at the time of the commission
of the instant offense and had two prior felony drug convictions, the probation
officer classified Mr. Rubio as a career offender under U.S.S.G. 4B1.1(b),
which provided for an offense level of thirty-four. After applying a three-level
decrease for acceptance of responsibility to the career offender offense level, the
probation officer calculated Mr. Rubios total offense level at thirty-one.
On February 13, 2008, Mr. Rubio filed a motion to reduce his sentence
under 18 U.S.C. 3582(c)(2), based on Amendment 706 which modified the Drug
Quantity Table in U.S.S.G. 2D1.1(c) downward two levels for crack cocaine
-3-
II. Discussion
Following Mr. Rubios pro se notice of appeal, his appointed counsel filed
an Anders appeal brief explaining that after a careful examination of the relevant
law and record on appeal, no meritorious issues exist on appeal. See Anders, 386
U.S. at 744. First, counsel acknowledges that in United States v. Cobb, 584 F.3d
979, 984 (10th Cir. 2009), we held that nothing in the language of Rule 11
precludes a defendant from benefitting from a favorable retroactive Guidelines
amendment, so that the district court improperly ruled it lacked jurisdiction to
grant relief under Rule 11. Nevertheless, counsel asserts the district courts
dismissal was appropriate, given Mr. Rubio is a career offender, to which
Amendment 706 does not apply.
district court lacked jurisdiction to reduce Mr. Rubios sentence because it was
calculated based on his career offender status under 4B1.1, to which
Amendment 706 does not apply.
III. Conclusion
For these reasons, no meritorious appellate issue exists for our review on
direct appeal. Accordingly, we GRANT counsels motion to withdraw and
DISMISS Mr. Rubios appeal. In addition, we DENY Mr. Rubios motion for
appointment of attorney.
-6-