FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 12, 2016 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-6147 (D.C. No. 5:05-CR-00068-C-1) CLEO PATTERSON, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges. _________________________________
In 2005, Cleo Patterson was convicted of two counts: (1) possession with
intent to distribute 25.92 kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1);
and (2) traveling in interstate commerce with the intent to promote a business
enterprise involving controlled substances and to further that enterprise by
transporting about 25.92 kilograms of cocaine, in violation of 18 U.S.C. § 1952(a)(3).
The 2004 edition of the Sentencing Guidelines was used to compute Patterson’s
sentence. Under the Presentence Investigation Report (PSR), Patterson was found to
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. be responsible for 22.29 kilograms of cocaine, yielding a base offense level of 34
under U.S.S.G. § 2D1.1. In addition, Patterson qualified as a career offender under
U.S.S.G. § 4B1.1, which raised his offense level to 37. With a criminal history
category of VI and an offense level of 37, Patterson’s advisory guideline range for
the drug conviction was 360 months to life imprisonment. Because the government
filed an Information under 21 U.S.C. § 851, Patterson’s statutory mandatory
minimum sentence was set at 20 years. Patterson’s advisory guideline range for the
transportation conviction was 60 months, limited by a statutory mandatory maximum
sentence of 5 years under 18 U.S.C. § 1952(a)(3)(A).
Patterson objected to the PSR on numerous bases, including opposing
application of the career-offender enhancement. The district judge adopted the PSR
without change and sentenced Patterson to 360 months on the drug conviction and 60
months on the racketeering conviction, to run concurrently. The district judge also
imposed 5 years of supervised release (3 on the transportation count to run
concurrently) after Patterson’s incarceration.
On September 20, 2013, the United States asked for a sentence reduction under
Fed. R. Crim. P. 35(b) and 18 U.S.C. § 3553(e) for Patterson’s substantial assistance.
Patterson was resentenced to 180 months on the drug conviction. His new sentence
was set 15 years lower than the bottom of the advisory range under the career-
offender guideline range, and 5 years below the otherwise-applicable statutory
mandatory minimum.
2 In 2014, the Sentencing Commission adopted Amendment 782 to the
Sentencing Guidelines, reducing the offense level for certain drug crimes by two
levels. Amendment 782 affected § 2D1.1 and § 2D1.11 of the guidelines and applies
retroactively. On November 3, 2014, Patterson filed a motion to modify his sentence
and counsel was appointed to assist him. The Probation Office concluded that
Patterson was ineligible for a reduction because the PSR had calculated his total
offense level under the career-offender guideline, § 4B1.1, not drug guideline
§ 2D1.1, which Amendment 782 affected.
In response, Patterson argued that he was entitled to resentencing under
18 U.S.C. § 3582(c)(2) because (1) Patterson’s career-offender status no longer
controlled once he was resentenced below the career-offender guideline, or, in the
alternative, (2) because reading § 1B1.10’s definition of “applicable guideline range”
as the range that corresponds to the offense level and criminal history category before
any departures or variances would violate the Ex Post Facto Clause. The district
court rejected both arguments.
On appeal, Patterson’s appointed counsel has filed an Anders brief and moved
to withdraw, explaining that she had reviewed the record and relevant case law and
determined the appeal to be wholly frivolous. See Anders v. California, 386 U.S. 738,
744 (2007). Patterson has filed a motion in response to counsel’s Anders brief, but he
has not raised additional legal arguments. Exercising jurisdiction under 18 U.S.C.
§ 3231, we affirm and grant counsel’s motion to withdraw.
3 Because defense counsel has submitted an Anders brief, our task is to “conduct
a full examination of the record to determine whether defendant’s claims are wholly
frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citing
Anders, 386 U.S. at 744). “Frivolous means ‘[l]acking a legal basis or legal merit; not
serious; not reasonably purposeful.’” United States v. Lain, 640 F.3d 1134, 1137
(10th Cir. 2011) (alteration in original) (quoting Frivolous, Black’s Law Dictionary
(8th ed. 2004). “We review de novo the district court’s interpretation of . . . the
sentencing guidelines.” United States v. Sharkey, 543 F.3d 1236, 1238 (10th Cir.
2008) (quoting United States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997)).
As the district court correctly noted, both of Patterson’s arguments are
foreclosed by our precedent. In United States v. Corber, 596 F.3d 763 (2010), we
squarely held that
for the purposes of a sentence modification under § 3582(c)(2), the “applicable guideline range” and the range upon which the sentence is “based” is, as a matter of law, the range produced under the guidelines’ sentencing table after a correct determination of the defendant’s total offense level and criminal history category but prior to any discretionary variances.
Id. at 768. Thus, as in Corber, Patterson’s “applicable guideline range” is the career-
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 12, 2016 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-6147 (D.C. No. 5:05-CR-00068-C-1) CLEO PATTERSON, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges. _________________________________
In 2005, Cleo Patterson was convicted of two counts: (1) possession with
intent to distribute 25.92 kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1);
and (2) traveling in interstate commerce with the intent to promote a business
enterprise involving controlled substances and to further that enterprise by
transporting about 25.92 kilograms of cocaine, in violation of 18 U.S.C. § 1952(a)(3).
The 2004 edition of the Sentencing Guidelines was used to compute Patterson’s
sentence. Under the Presentence Investigation Report (PSR), Patterson was found to
* 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. be responsible for 22.29 kilograms of cocaine, yielding a base offense level of 34
under U.S.S.G. § 2D1.1. In addition, Patterson qualified as a career offender under
U.S.S.G. § 4B1.1, which raised his offense level to 37. With a criminal history
category of VI and an offense level of 37, Patterson’s advisory guideline range for
the drug conviction was 360 months to life imprisonment. Because the government
filed an Information under 21 U.S.C. § 851, Patterson’s statutory mandatory
minimum sentence was set at 20 years. Patterson’s advisory guideline range for the
transportation conviction was 60 months, limited by a statutory mandatory maximum
sentence of 5 years under 18 U.S.C. § 1952(a)(3)(A).
Patterson objected to the PSR on numerous bases, including opposing
application of the career-offender enhancement. The district judge adopted the PSR
without change and sentenced Patterson to 360 months on the drug conviction and 60
months on the racketeering conviction, to run concurrently. The district judge also
imposed 5 years of supervised release (3 on the transportation count to run
concurrently) after Patterson’s incarceration.
On September 20, 2013, the United States asked for a sentence reduction under
Fed. R. Crim. P. 35(b) and 18 U.S.C. § 3553(e) for Patterson’s substantial assistance.
Patterson was resentenced to 180 months on the drug conviction. His new sentence
was set 15 years lower than the bottom of the advisory range under the career-
offender guideline range, and 5 years below the otherwise-applicable statutory
mandatory minimum.
2 In 2014, the Sentencing Commission adopted Amendment 782 to the
Sentencing Guidelines, reducing the offense level for certain drug crimes by two
levels. Amendment 782 affected § 2D1.1 and § 2D1.11 of the guidelines and applies
retroactively. On November 3, 2014, Patterson filed a motion to modify his sentence
and counsel was appointed to assist him. The Probation Office concluded that
Patterson was ineligible for a reduction because the PSR had calculated his total
offense level under the career-offender guideline, § 4B1.1, not drug guideline
§ 2D1.1, which Amendment 782 affected.
In response, Patterson argued that he was entitled to resentencing under
18 U.S.C. § 3582(c)(2) because (1) Patterson’s career-offender status no longer
controlled once he was resentenced below the career-offender guideline, or, in the
alternative, (2) because reading § 1B1.10’s definition of “applicable guideline range”
as the range that corresponds to the offense level and criminal history category before
any departures or variances would violate the Ex Post Facto Clause. The district
court rejected both arguments.
On appeal, Patterson’s appointed counsel has filed an Anders brief and moved
to withdraw, explaining that she had reviewed the record and relevant case law and
determined the appeal to be wholly frivolous. See Anders v. California, 386 U.S. 738,
744 (2007). Patterson has filed a motion in response to counsel’s Anders brief, but he
has not raised additional legal arguments. Exercising jurisdiction under 18 U.S.C.
§ 3231, we affirm and grant counsel’s motion to withdraw.
3 Because defense counsel has submitted an Anders brief, our task is to “conduct
a full examination of the record to determine whether defendant’s claims are wholly
frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citing
Anders, 386 U.S. at 744). “Frivolous means ‘[l]acking a legal basis or legal merit; not
serious; not reasonably purposeful.’” United States v. Lain, 640 F.3d 1134, 1137
(10th Cir. 2011) (alteration in original) (quoting Frivolous, Black’s Law Dictionary
(8th ed. 2004). “We review de novo the district court’s interpretation of . . . the
sentencing guidelines.” United States v. Sharkey, 543 F.3d 1236, 1238 (10th Cir.
2008) (quoting United States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997)).
As the district court correctly noted, both of Patterson’s arguments are
foreclosed by our precedent. In United States v. Corber, 596 F.3d 763 (2010), we
squarely held that
for the purposes of a sentence modification under § 3582(c)(2), the “applicable guideline range” and the range upon which the sentence is “based” is, as a matter of law, the range produced under the guidelines’ sentencing table after a correct determination of the defendant’s total offense level and criminal history category but prior to any discretionary variances.
Id. at 768. Thus, as in Corber, Patterson’s “applicable guideline range” is the career-
offender guideline, which was not affected by Amendment 782. See id. (finding that
Amendment 706, a similar amendment to the drug guidelines, did not apply to
Corber, who had been sentenced under the career-offender guideline). It is irrelevant
that Patterson actually received a sentence below the career-offender guideline range:
4 the “applicable guideline range” remains the same. We affirm the ruling of the
district court and grant counsel’s motion to withdraw.
Appellant filed the opening brief and a number of documents under seal. In
response to an order to show cause, both Appellant and the government responded in
support of sealing the materials. Given the safety concerns arising from Patterson’s
substantial assistance, filing under seal is narrowly tailored to serve safety interests.
See Press-Enter. Co. v. Superior Court of Cal., 464 U.S. 501, 510 (1984) (“The
presumption of openness may be overcome only by an overriding interest based on
findings that closure is essential to preserve higher values and is narrowly tailored to
serve that purpose.”); see United States v. A.B., 529 F.3d 1275, 1275 n.* (10th Cir.
2008).
Entered for the Court
Gregory A. Phillips Circuit Judge