United States v. Avila
679 F. App'x 735
10th Cir.2017Background
- Avila pleaded guilty in 2011 to possession with intent to distribute methamphetamine and to unlawful reentry.
- Presentence report set a base offense level of 34 for the drug count; adjustments produced a total offense level of 26 and criminal history category V, yielding a Guidelines range of 110–137 months.
- The district court departed downward to criminal history category IV and sentenced Avila to 92 months (the bottom of the departed range).
- Avila moved under 18 U.S.C. § 3582(c)(2) for a sentence reduction based on Amendment 782, which lowered the drug base offense level by 2.
- The district court dismissed the § 3582(c)(2) motion for lack of jurisdiction because Avila’s actual sentence resulted from a below-Guidelines departure, not from the Guidelines range Amendment 782 changed.
- Avila appealed; counsel filed an Anders brief; the court conducted an independent review and dismissed the appeal as frivolous and granted counsel’s motion to withdraw.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Avila is eligible for a § 3582(c)(2) reduction based on Amendment 782 | Amendment 782 lowered the Guideline range and should reduce Avila’s sentence | Avila’s sentence was the result of a downward departure, not the applicable Guidelines range changed by Amendment 782, so § 3582(c)(2) does not apply | Court held Avila ineligible because his sentence was a departure outside the applicable Guideline range |
| Whether the district court had jurisdiction to grant a remedial reduction | Avila argued the district court could reduce his sentence under § 3582(c)(2) | District court argued it lacked jurisdiction because the amendment did not lower the range that produced Avila’s sentence | Court agreed with district court that it lacked jurisdiction |
| Whether counsel properly moved to withdraw under Anders | Avila’s counsel asserted the appeal was frivolous after review | Government did not oppose; court must independently review the record | Court found counsel’s Anders brief adequate and the appeal frivolous; granted withdrawal |
| Whether appellate oral argument was necessary | Avila implicitly sought appellate consideration | Court determined record and briefs sufficed | Court denied oral argument and submitted matter on briefs |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (procedural framework for counsel to seek withdrawal when appeal is frivolous)
- United States v. Calderon, 428 F.3d 928 (10th Cir. 2005) (appellate duty to review Anders submissions and record independently)
- United States v. Darton, 595 F.3d 1191 (10th Cir. 2010) (a sentencing departure results in a sentence outside the applicable Guideline range and is not covered by § 3582(c)(2))