UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. OSCAR LUIS CHACON, Defendant - Appellant. No. 15-2139 (D.C. No. 2:92-CR-00038-RB-2) (D. New Mexico)

________________ _________________ ORDER AND JUDGMENT *

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

________________ _________________ In 1992, Oscar Luis Chacon was convicted by a jury of conspiracy to possess with intent to distri bute more than five kilograms of cocaine in viola tion of 21 U.S.C. §§ 841 & 846. The Presentence Investigatio n Report (PSR) stated that Mr. Chacon’s offense conduct involved 1,15 6.1 kilograms of cocaine, which placed him in a base offense level of 40 under the Drug Quantity Table in the then-applicable United States Sentencing Guidelines. U.S.S. G § 2D1.1(c) (1988). The PSR also recommended a two-level enhancement for Mr. Chacon’s role in the offense, and

* 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### March 3, 2016 Elisabeth A. Shumaker Clerk of Court2 another two-level enhancement for his obstr uction of justice. This resulted in an adjusted offense level of 44 and a Guideline sentencing range of life. Id. The district court adopted the PSR recommendations and sentenced Mr. Chacon to life in prison on September 30, 1992. On August 12, 1996, Mr. Chacon file d a motion pursuant to 18 U.S.C. § 3582(c)(2) for reduction of his sent ence based on Amendment 505 of the Sentencing Guidelines. Amendment 505 modified the Drug Quantity Table under § 2D1.1 and established a lowe r offense level than that applicable when Mr. Chacon was initially sentenced. See U.S.S.G § 2D1.1(c) (Drug Quantity table) (1996). Specifically, under Amendment 505, an offense quantity of 150 kilograms or greater would result in a base offense level of 38. Id. Thus, at an offense quantity of 1,156.1 kilograms, Mr. Chacon’s base offense level would be 38, ra ther than the base offense level of 40 imposed under the Drug Quanti ty Table applicable at his initial sentencing. Id. When combined with the two-leve l enhancement for his role in the offense and the two-level enhancement for obstr uction of justice, this would result in an adjusted offense level of 42, rather than the adjusted offense level of 44 used at his 1992 sentencing. The district court agreed that Amendm ent 505 should be applied retroactively to Mr. Chacon. It therefore granted Mr. Chacon’s motion on December 24, 1996, and reduced his sentence from life to 360 months. On November 14, 2014, Mr. Chacon f iled a new motion under 18 U.S.C. § 3582(c)(2) to reduce his sentence base d on Amendment 782 to § 2D1.1, which3 further lowered the base levels for certa in quantities in the Dr ug Quantity Table. U.S.S.G. § 2D1.1(c) (Drug Quantity Table) (2014). The district court denied the motion because Mr. Chacon’s offense level would remain the same under the newly amended Guidelines. In particular, the newly revised Drug Quantity Table provided that 450 kilograms or more of cocaine woul d result in a base of fense level of 38. Id. Because Mr. Chacon’s offense quantity of 1, 156.1 kilograms of cocaine is greater than 450 kilograms, his ba se offense level would remain at 38 under Amendment 782. And when combined with his enhan cements, Mr. Chacon’s adjusted base level would be 42 under Amendment 782—the sa me adjusted offens e level used by the district court to modify his sentence in 1996. Thus, the di strict court concluded that even if Amendment 782 were applied retroac tively to Mr. Chacon, it would not affect his sentence. Mr. Chacon filed a timely appeal from the district court’s denial of his latest motion for a reduction in his sentence. But Mr. Chacon’s attorney has filed a brief with this Court under the guidance of Anders v. California , 386 U.S. 738 (1967). In Anders , the Supreme Court held that a defe nse lawyer may seek permission to withdraw from an appeal if, “a fter a conscientious examinat ion” of the case, she finds the appeal to be “wholly frivolous.” Id. at 744. Any request to withdraw, however, must be accompanied by a “brief referring to anything in the record that might arguably support the appeal.” Id. And the attorney must al so furnish a copy of the Anders brief to the client, so that he can “raise any points that he chooses.” Id. If the court, after a “full examinati on of all the proceedings,” c oncludes that the appeal is,4 in fact, wholly frivolous, it may grant coun sel’s motion to withdr aw and dismiss the appeal. Id. Counsel for Mr. Chacon has complied wi th these procedures here. Counsel filed an Anders brief with this Court explaining th at after “a thorough review of the file and records in th is case,” she found the appeal to be without merit. Accordingly, she requested permission to withdraw but noted “she will continue to assist Mr. Chacon in his efforts to rece ive a grant of clemency.” And although Mr. Chacon has been afforded an opportun ity to raise any points he considers non-frivolous, he has not done so. After conducting our own review of the record, we agree th at Mr. Chacon has no meritorious grounds for appeal. For th e reason explained a bove, Amendment 782 to the Sentencing Guidelines does not provi de any support for a further reduction in Mr. Chacon’s sentence. The motion to withdraw is granted and this appeal is dismissed. Entered for the Court
Carolyn B. McHugh Circuit Judge