*

 This order and judgment is not binding precedent except under the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.

FILED

United States Court of Appeals

Tenth Circuit

May 5, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSE RUBIO,

Defendant-Appellant.

No. 09-2104

(D.Ct. No. 1:01-CR-00955-MV-1)

(D. N.M.)

______________________________

ORDER AND JUDGMENT*

Before BARRETT, ANDERSON, and BRORBY, Senior Circuit Judges.

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.

Defendant-Appellant Jose Rubio pled guilty to one count of distribution of

less than five grams of cocaine base (crack cocaine), in violation of 21 U.S.C.

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§ 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 counsel’s motion to withdraw and dismiss

this appeal. Id.

I. Factual and Procedural Background

Pursuant to a plea agreement entered May 7, 2002, Mr. Rubio pled guilty to

one count of distribution of less than five grams of crack cocaine, in violation of

21 U.S.C. § 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). 

As part of the plea agreement, the parties stipulated to a sentence of 150 months

imprisonment under then-Federal Rule of Criminal Procedure 11(e)(1)(C). After

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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. Rubio’s total offense level at thirty-one. 

With respect to Mr. Rubio’s criminal history computation, the probation

officer determined he had fourteen criminal history points, establishing a criminal

history category of VI. The probation officer also determined that because Mr.

Rubio was a Guidelines career offender under U.S.S.G. § 4B1.1(b), his career

offender criminal history category was also VI under that provision, which,

together with his offense level of thirty-one, resulted in a Guidelines sentencing

range of 188 to 235 months. Pursuant to the parties’ stipulation under then-Rule

11(e)(1)(C), the district court sentenced Mr. Rubio to 150 months imprisonment. 

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

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1

 See U.S.S.G. Supp. to App. C, Amend. 706 (Reason for Amend.);

Amends. 712 and 713 (Mar. 3, 2008 Supp.); U.S.S.G. § 1B1.10(a)(2).

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offenses effective November 1, 2007, and retroactive as of March 3, 2008.1

Following a hearing on Mr. Rubio’s § 3582 motion, the district court denied it,

relying on United States v. Trujeque, 100 F.3d 869, 870-71 (10th Cir. 1996), and

explaining it lacked jurisdiction to consider his motion because Mr. Rubio was

sentenced on “a specific, agreed-upon sentence pursuant to then-Rule

11(e)(1)(C).” 

II. Discussion

Following Mr. Rubio’s 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 court’s

dismissal was appropriate, given Mr. Rubio is a career offender, to which

Amendment 706 does not apply. 

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Pursuant to Anders, this court gave Mr. Rubio an opportunity to respond to

his counsel’s Anders brief. See 386 U.S. at 744. Thereafter, on April 26, 2010,

Mr. Rubio filed a response, asserting the district court had jurisdiction, under

Cobb, to rule on his motion and requesting this court remand his motion to the

district court for a ruling. The government filed a notice of its intention not to

file an answer brief in this appeal. 

As required by Anders, we have conducted a full examination of the record

before us. See id. Even if we consider Mr. Rubio’s response, we agree with his

counsel’s assessment of the issue presented. Regardless of whether the district

court improperly determined it lacked jurisdiction to review Mr. Rubio’s motion

under Rule 11, it nevertheless lacked jurisdiction to modify his sentence because

calculation of that sentence was based on application of the career offender

enhancement under U.S.S.G. § 4B1.1, rather than § 2D1.1 which was modified by

Amendment 706. As we determined in United States v. Sharkey, 543 F.3d 1236,

1239 (10th Cir. 2008), Amendment 706 lowered the sentencing range for crack

cocaine offenses and does not apply to career offenders under § 4B1.1, which was

not changed by that amendment. Section 3582(c)(2) only permits a reduction in

sentence for “a defendant who has been sentenced to a term of imprisonment

based on a sentencing range that has subsequently been lowered by the

Sentencing Commission.” See also U.S.S.G. § 1B1.10(a)(2)(B). Thus, the

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district court lacked jurisdiction to reduce Mr. Rubio’s 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 counsel’s motion to withdraw and

DISMISS Mr. Rubio’s appeal. In addition, we DENY Mr. Rubio’s motion for

appointment of attorney.

Entered by the Court:

WADE BRORBY

United States Circuit Judge

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