UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MARIO DEVONNE WASHINGTON, SR., Defendant - Appellant. No. 16-2005 (D.C. No. 2:10-CR-03160-RB-2) (D. New Mexico)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , GORSUCH , and McHUGH , Circuit Judges.

________________ _________________ Mario Devonne Washington, Sr. appeals the district court’s denial of his request for a sentence reduction pursuant to Sentencing Guidelines Amendment 782, which lowered by two levels the base offe nse levels provided in the Drug Quantity Table set forth in U.S.S.G. § 2D1.1(c) for drug trafficking offenses. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we dismiss this appeal and grant counsel’s request to withdraw.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### July 21, 2016
Elisabeth A. Shumaker Clerk of Court2 I. BACKGROUND Mr. Washington pled guilty to conspiracy to possess with in tent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D). The United States Probation Office prepared a Presentence I nvestigation Report (PSR ) that determined the applicable Sentenci ng Guidelines range. Important for our analysis, the PSR determined that Mr. Washington fell within the career-offender pr ovision of the Guidelines b ecause he had at least two prior qualifying felony convictions. U.S.S.G. § 4B1.1. This classification resulted in a higher base offense level a nd criminal history level th an would have applied if Mr. Washington had committed the same offense but did not meet the definition of a career criminal. Id. Specifically, the PSR calculated that the quantity of drugs attributed to Mr. Washington resulted in a base offense level of sixteen. His o ffense level was then adjusted upward two levels because Mr. Wa shington was an organizer or leader of the drug conspiracy, and an additional two le vels because he had engaged in witness intimidation, tampered with or destroyed ev idence, or otherwise obstructed justice in connection with the investigation or pr osecution of the offe nse. Thus, had Mr. Washington’s sentence been ca lculated under § 2D1.1, hi s adjusted guidelines level of twenty and his eleven criminal history points would have pl aced him in criminalhistory category V, resulting in a Guidelin es range of 63 to 78 months. U.S.S.G. ch. 5, pt. A.3 But because Mr. Washington qualified as a career criminal , the PSR set his offense level to twenty-four and his crim inal-history category to VI pursuant to § 4B1.1. The PSR then applied a two-le vel reduction based on Mr. Washington’s acceptance of responsibility, for a total of offense level of twenty-two. Thus, due to Mr. Washington’s status as a career criminal, the PSR calculated the applicable Guidelines range to be 84 to 105 months. The district court adopted the PSR without change and sentenced Mr. Washington based on the offense level of twenty-two and crimin al-history category of VI calculated under § 4B1.1. The distri ct court sentenced Mr. Washington to 105 months imprisonment, the high end of the 84- to 105-month Guidelines range. Mr. Washington did not appeal his sentence. On March 16, 2015, Mr. Washington f iled a pro se Motion for Reduction of Sentence Under to 18 U.S.C. § 3582(c)(2), based on U.S.S.G. Amendment 782. The district court denied the motion and dismisse d for lack of jurisdiction. The district court also denied as moot Mr. Washington’s Motion fo r Reconsideration of that order. Mr. Washington filed a timely appeal of the district court’s denial of his request for a sentence reduction, and this court granted his motion for the appointment of counsel. On April 29, 2016, Mr. Washington’s counsel filed a brief in accordance with Anders v. California , which permits defense counsel to “request permission to withdraw” wher e counsel concludes the app eal is “wholly frivolous, after a conscientious examination of it.” 386 U.S. 738, 744 (1967). Consistent with4 Anders , counsel submitted a copy of the brief to Mr. Washington and advised him of his right to “raise any points that he chooses.” Id. Mr. Washington took advantage of th at opportunity and filed a response to counsel’s Anders brief. As he did in the district court, Mr. Washington challenges the accuracy of the PSR and the calculation of his original sentence, including his classification as a career criminal. But Mr. Washington may not collaterally attack his original sentence under § 3582(c)(2). See United States v. Gay , 771 F.3d 681, 686 (10th Cir. 2014). After our independent examination of th e record, we conclude the appeal is, indeed, wholly frivolous. We therefore gr ant counsel’s motion to withdraw and dismiss the appeal. II. DISCUSSION This court reviews a decision of the district court denying a request for a sentence reduction for an abuse of discretion. United States v. Osborn , 679 F.3d 1193, 1195 (10th Cir. 2012). Once a term of impris onment is imposed, a court may not modify it except in narrow circumstance s, including where a defendant “has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Senten cing Commission.” 18 U.S. C. § 3582(c)(2). To be eligible for a sentence reduction u nder § 3582(c)(2), the a pplicable Guidelines range must have been lowered by an am endment to the Guid elines listed in § 1B1.10(d) of the Guidelines Manual. U.S.S.G. § 1B1.10 cmt. n.1(A). But a reduction in the defendant’s term of imprisonment is not authorized under 18 U.S.C.5 § 3582(c)(2) if the relevant “amendment lis ted in subsection (d) does not have the effect of lowering the defendant’s a pplicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). In support of his request for a senten ce reduction, Mr. Washington relies on Amendment 782, which is listed in s ubsection (d) of section 1B1.10 of the Guidelines. Amendment 782 lowered by two le vels the base offense levels in the Drug Quantity Table for drug of fenses located in the § 2D 1.1(c) of the Guidelines. U.S.S.G. Supplement to Appendix C, Amendment 782, Reason for Amendment 71– 72. But Mr. Washington’s Guideline range was based on the career-criminal provision of U.S.S.G. § 4B1.1, not the Drug Quantity Tabl e at § 2D1.1. As discussed, the district court found that he qualified as a career criminal, and it calculated his sentencing range and criminal history ca tegory under § 4B1.1. Amendment 782 had no impact on the sentencing range for ca reer criminals under § 4B1.1. Because Amendment 782 “does not have the effect of lowering [Mr. Washington’s] applicable guideline range,” his sentence cannot be m odified under § 3582(c)(2). U.S.S.G. § 1B1.10(a)(2)(B). In summary, Mr. Washington’s Guid elines range was calculated under the career criminal provision of the Guid elines, which has not been reduced by Amendment 782. The district court theref ore could not grant a sentence reduction. Cf. United States v. Sharkey , 543 F.3d 1236, 1239 (10th Cir. 2008) (holding that Amendment 706 to the Guidelines, which re duced the drug-quantity offense levels6 for crack cocaine, did not lower the defenda nt’s sentence where his Guidelines range was calculated under the career-criminal provision). III. CONCLUSION Because the district cour t lacked authority to reduce Mr. Washington’s sentence under 18 U.S.C. § 3582(c)(2), he has failed to ra ise any non-frivolous arguments challenging th at decision on appeal. Counsel’s motion to withdraw is grante d, and this appeal is dismissed. Entered for the Court
Carolyn B. McHugh Circuit Judge