                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 10-2945
                                     ____________

                           UNITED STATES OF AMERICA

                                           v.

                               RAHEEM MCCLELLAN,

                                                      Appellant
                                     ____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (D.C. No. 3-04-cr-00191-001)
                     District Judge: Honorable James M. Munley
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 February 17, 2011

   Before: SLOVITER and HARDIMAN, Circuit Judges and JONES *, District Judge

                               (Filed: February 18, 2011)

                                     ____________

                              OPINION OF THE COURT
                                   ____________




      *
       The Honorable C. Darnell Jones, District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
HARDIMAN, Circuit Judge.

       Raheem McClellan appeals the judgment of sentence imposed by the District

Court following his plea of guilty pursuant to a plea agreement. His counsel has moved

to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and McClellan

declined to submit a pro se brief. We will grant counsel’s motion and affirm the

judgment of the District Court. 1

                                             I

       When counsel files a motion pursuant to Anders, we determine whether: (1)

counsel adequately fulfilled the Anders requirements and (2) an independent review of the

record presents any nonfrivolous issues. United States v. Marvin, 211 F.3d 778, 780 (3d

Cir. 2000).

       To meet the first prong, appointed counsel must examine the record, conclude that

there are no nonfrivolous issues for review, and request permission to withdraw. United

States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Counsel must accompany a motion to

withdraw with a “brief referring to anything in the record that might arguably support the

appeal.” Anders, 386 U.S. at 744. Counsel need not raise and reject every possible claim,

but must, at a minimum, meet the “conscientious examination” standard set forth in

Anders. Youla, 241 F.3d at 300.


       1
       The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.
We have appellate jurisdiction under 28 U.S.C. § 1291.


                                            2
       McClellan’s counsel filed a motion to withdraw along with an Anders brief in

which he identifies one arguably valid issue for appeal—the denial of McClellan’s motion

for sentence reduction—which counsel demonstrates to be frivolous. Our independent

review of the record likewise finds no issues for appeal because McClellan explicitly

waived his right to appeal in a valid plea agreement.

       On April 6, 2005, McClellan pleaded guilty, pursuant to a written plea agreement,

to a charge of conspiracy to distribute and to possess with intent to distribute cocaine base

in violation of 21 U.S.C. § 846. The plea agreement included a stipulated sentence of 108

months imprisonment. App. 21. The Probation Office prepared a Presentence

Investigation Report (PSR), which calculated McClellan’s total Offense Level as 29 and

his Criminal History Category as VI—because his past criminal activity meant he was a

Career Offender, as defined in U.S.S.G. § 4B1.1—yielding an advisory Guidelines

sentencing range of 151 to 188 months. The PSR also noted the existence of the plea

agreement and stipulated sentence. On July 7, 2005, the District Court sentenced

McClellan to the agreed-upon sentence of 108 months imprisonment, three years

supervised release, and a special assessment of $100.

       Almost three years later, on June 24, 2008, McClellan filed a pro se motion to

reduce his sentence, pursuant to 18 U.S.C. § 3582(c)(2), in light of the United States

Sentencing Commission’s Amendments 706 and 711, which reduced the base offense

level for most crack cocaine offenses. See USSG § 1B1.10 (Amendments 706, 711,


                                              3
among others, are to be applied retroactively). The District Court denied McClellan’s

motion, noting that he had been sentenced pursuant to a plea agreement and that, because

his Guidelines range was governed by his career offender status, the amendments to the

crack guidelines did not affect his sentencing range. 2 Our precedent makes clear that a

District Court has no jurisdiction under 18 U.S.C. § 3582(c)(2) to modify the prison

sentence of a career offender whose Guidelines range was not lowered by the

amendments to the crack cocaine guidelines. United States v. Mateo, 560 F.3d 152 (3d

Cir. 2009). Therefore, the District Court properly denied McClellan’s 18 U.S.C. §

3582(c)(2) motion.

       Our independent review of the record reveals no nonfrivolous issues for appeal

because McClellan explicitly waived his right to appeal in a valid plea agreement.

McClellan’s plea agreement states that he:

       knowingly waives the right to appeal any conviction and sentence,
       including a sentence imposed within the statutory maximum, on any and all
       grounds set forth in Title 18, United States Code, Section 3742 or any other
       grounds, constitutional or non-constitutional, . . . so long as [McClellan]
       receives a sentence of 108 months in prison, a period of supervised release
       of 3 years and a special assessment of $100.00.

App. 27. Such a waiver is binding, so long as it was knowing and voluntary and does not

work a miscarriage of justice. See United States v. Mabry, 536 F.3d 231, 236-37 (3d Cir.


       2
        Had the District Court recalculated his Guidelines range based on the new crack
cocaine guidelines, McClellan’s total offense level would have been 27, which, with a
Criminal History Category of VI, would have yielded a Guidelines range of 130-162
months.

                                             4
2008). A review of the record reveals no indication that McClellan’s plea agreement, or

the waiver of his appeal rights contained therein, was entered into unknowingly or

involuntarily. Nor would enforcing it constitute a miscarriage of justice. Indeed,

McClellan received a significant benefit from the agreement, and his sentence was 22

months shorter than the bottom of what would have been his recalculated Guidelines

range.

                                                II

         We find that counsel has adequately shown that there are no nonfrivolous

appealable issues, thereby meeting the requirements of the first prong of Anders.

         As for the second prong of Anders, our independent review of the record reveals

that there are no appealable issues of merit.

         Accordingly, we will affirm the judgment of the District Court and, in a separate

order, grant counsel’s motion to withdraw pursuant to Anders.




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