479 F. App'x 445
3rd Cir.
2012

UNITED STATES of America v. Jamell BIRT, Appellant.

No. 12-1273.

United States Court of Appeals, Third Circuit.

Sept. 19, 2012.

488 Fed. Appx. 445

Submitted Under Third Circuit L.A.R. 109.2 Sept. 14, 2012.

William A. Behe, Esq., Office of United States Attorney, Harrisburg, PA, for United States of America.

Jamell Birt, Lexington, KY, pro se.

Ronald A. Krauss, Esq., Thomas A. Thornton, Esq., Office of Federal Public Defender, Harrisburg, PA, for Appellant.

Before: SMITH and CHAGARES, Circuit Judges, and ROSENTHAL, District Judge.1

JUDGMENT ORDER

LEE H. ROSENTHAL, District Judge.

On June 9, 2003, Jamell Birt pleaded guilty under a plea agreement to a one-count information charging him with possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1). At the February 27, 2004 sentencing hearing, the district judge determined that Birt was a career offender with a criminal history category of VI and an adjusted total offense level of 34, yielding an advisory guideline range of 262 to 327 months. The District Court imposed the statutory maximum of 240 months.

After Birt’s sentencing, the United States Sentencing Commission amended the Sentencing Guidelines by increasing the quantity of crack cocaine required for mandatory minimum prison terms. U.S.S.G. app. C, amend. 750 (2011). The Commission made this amendment retroactive effective November 1, 2011. U.S.S.G. app. C, amends. 750, 759 (Supp. May 1, 2008). On November 23, 2011, Birt, represented by counsel, moved to reduce his sentence under 18 U.S.C. § 3582(c)(2). On January 13, 2012, the District Court granted the motion and lowered the sentence to the bottom of the revised applicable guideline range, which was 210 to 240 months. Birt filed a notice of appeal, challenging the amount of the reduction as insufficient.

Birt’s court-appointed counsel has moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). An Anders brief must demonstrate that counsel has “thoroughly examined the record in search of appealable issues,” and the brief must “explain why the [identified] issues are frivolous.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). We must satisfy ourselves that counsel adequately fulfilled the Anders requirements and that an independent review of the record presents no nonfrivolous issues. Id. (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000)); see also Anders, 386 U.S. at 744, 87 S.Ct. 1396 (explaining that the court must proceed, “after a full examination of all the proceedings, to decide whether the case is wholly frivolous.”). If the review fails to reveal any nonfrivolous issues, we “may grant counsel’s request to withdraw and dismiss the appeal.” Id.

Counsel has fulfilled his obligation under Anders. His brief sets out the relevant facts and correctly explains that the District Court’s reduction of the sentence to the bottom of the amended applicable guideline range was as much as the statute2 and guidelines3 permitted and was consistent with Booker v. United States, 543 U.S. 220, 125 S.Ct. 738, 16 L.Ed.2d 621 (2005), because the original sentence was within the guideline range. See Dillon v. United States, 560 U.S. 817, 826, 130 S.Ct. 2683, 2692, 177 L.Ed.2d 271 (2010) (“Given the limited scope and purpose of § 3582(c)(2), we conclude that proceedings under that section do not implicate the interests identified in Booker.”). Counsel also explains that Birt received the reduction that his motion asked the District Court to provide. Based on our review of the record, we agree with Birt’s counsel that there is no nonfrivolous issue meriting consideration on appeal.

On consideration whereof, it is now hereby ADJUDGED AND ORDERED by this Court that the order of the District Court entered January 17, 2012 is hereby AFFIRMED. We grant counsel’s motion to withdraw. We certify that the issues presented in the appeal lack legal merit for purposes of counsel filing a petition for writ of certiorari with the Supreme Court. 3d Cir. L.A. R. 109.2(b).

Notes

1
The Honorable Lee H. Rosenthal, United States District Judge for the Southern District of Texas, sitting by designation.
2
18 U.S.C. § 3582(c)(2).
3
U.S.S.G. § 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range) (Policy Statement).
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