                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                    No. 12-2841
                                   _____________

                          UNITED STATES OF AMERICA

                                          v.

                            BRUCE GORDON LOW, JR.,
                                              Appellant
                                _____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF NEW JERSEY
                         (D.C. Crim. No. 06-cr-00791-001)
                  District Judge: Honorable Joseph H. Rodriguez
                                  ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 21, 2013
                                   ____________

             Before: FUENTES, CHAGARES and BARRY, Circuit Judges

                            (Opinion Filed: April 23, 2013)
                                   ____________

                                      OPINION
                                    ____________

BARRY, Circuit Judge

      Appellant Bruce Gordon Low, Jr. was sentenced to 120 months‟ imprisonment

following our remand for resentencing. He appeals. Counsel has filed a motion to
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withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738 (1967),

asserting that there are no nonfrivolous issues for appeal. We will affirm and grant

counsel‟s motion to withdraw.

                                             I.

       Low was charged in a two-count information with unlawful possession with intent

to distribute 50 grams of crack cocaine (Count I), and possession of a firearm after having

been convicted of a felony (Count II). On September 28, 2006, he pled guilty to both

counts.

       Over the course of the next two years, Low was represented by four separate

attorneys before proceeding pro se at his sentencing hearing on October 21, 2008.1 The

District Court sentenced Low to a term of imprisonment of 151 months on the first count

and 120 months on the second count to run concurrently. On appeal, we held that the

District Court had violated Low‟s Sixth Amendment right to counsel because “it forced

him to proceed pro se without providing an adequate Faretta/Welty colloquy.” United

States v. Low, 401 F. App‟x 664, 668 (3d Cir. 2010). We remanded for resentencing.

       For Low‟s resentencing, the probation office revised its presentence report and

calculated his total offense level to be 31, which represented an adjusted offense level of

34 less 3 points for acceptance of responsibility, and his criminal history category to be a


1
 The District Court did assign his fourth attorney, John F. Renner, Esq., to act as standby
counsel. The same attorney represented him at his second sentencing hearing and
currently represents him on appeal.

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III. The result was a sentencing guideline range of 135 to 168 months.

       At his resentencing, Low, represented by Mr. Renner, asked the District Court to

vary downward, based principally upon his extensive post-conviction rehabilitation.2 The

District Court agreed, granting a 15-month downward variance and sentencing Low to a

term of imprisonment of 120 months on each count to be served concurrently. This

appeal followed.

                                            II.3

       Under Anders, if court-appointed appellate counsel determines there are no

nonfrivolous issues for appeal, he or she may seek to withdraw from representing an

indigent criminal defendant. United States v. Marvin, 211 F.3d 778, 779 (3d Cir. 2000).

Our review is plenary over whether there are any nonfrivolous issues for appeal. See

Simon v. Gov’t of the Virgin Islands, 679 F.3d 109, 114 (3d Cir. 2012) (citing Penson v.

Ohio, 488 U.S. 75, 80 (1988)). We must consider: “1) whether counsel adequately

fulfilled the requirements of Third Circuit Local Appellate Rule 109.2(a), and 2) whether

an independent review of the record presents any nonfrivolous issues.” Id. at 114.

       To satisfy the first step, counsel must conclude that there are no nonfrivolous

issues for appeal after reviewing the record, advise us of his or her conclusions, and


2
  In addition, Low asked the District Court to downward depart to a lower criminal
history category and to vary from the 18:1 crack/powder ratio established by the Fair
Sentencing Act of 2010 (“FSA”). The District Court denied Low‟s requests, and Low
does not appeal the denials.
3
  The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. We exercise
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
                                              3
request permission to withdraw. United States v. Youla, 241 F.3d 296, 299-300 (3d Cir.

2001). Moreover, counsel must submit a “brief referring to anything in the record that

might arguably support the appeal,” and explain why the issues appellant wishes to raise

on appeal are frivolous. Anders, 386 U.S. at 744; see Marvin, 211 F.3d at 780-81.

“[W]hat is required is a determination that the appeal lacks any basis in law or fact.”

McCoy v. Court of Appeals of Wis., 486 U.S. 429, 438 n.10 (1988); see Youla, 241 F.3d at

300-01.

       At the second step, we conduct an independent review of the record to assess

whether it presents any nonfrivolous issues. See Youla, 241 F.3d at 300. “Where the

Anders brief initially appears adequate on its face, the proper course is for the appellate

court to be guided in reviewing the record by the Anders brief itself.” Id. at 301 (internal

quotation marks and citation omitted). However, “„in those cases in which frivolousness

is patent,‟ we will not appoint new counsel even if an Anders brief is insufficient to

discharge current counsel‟s obligations to his or her client and this court.” United States v.

Coleman, 575 F.3d 316, 321 (3d Cir. 2009) (quoting Marvin, 211 F.3d at 781). We also,

of course, consider an appellant‟s pro se filings. If we determine that the appeal is

without merit, we must grant appellate counsel‟s motion to withdraw and dispose of the

appeal without appointing new counsel.

       Low‟s counsel contends that there are no nonfrivolous issues for review on appeal.

However, he fails to address the issues raised by Low in his pro se brief, which gives us


                                              4
some pause as to whether counsel has satisfied his obligation to conduct a “conscientious

examination” of the record. Anders, 386 U.S. at 744. Thus, we must decide whether

Low‟s appeal is patently frivolous despite the Anders brief that has been submitted. See

Marvin, 211 F.3d at 781 (finding Anders brief deficient in part because counsel failed to

address whether client‟s pro se arguments lacked merit).

       The arguments Low raises in his pro se brief are plainly without merit. First, Low

contends that the District Court violated the prohibition against ex post facto laws when it

employed the 2010 Sentencing Guidelines Manual and Supplement. Pursuant to the FSA,

the 2010 Supplement eliminated the two-level offense level reduction for which Low had

previously qualified under the 2008 Manual.4 Generally, a district court must use the

Guidelines Manual and its amendments in effect on the date of sentencing, unless the

court determines that such use would violate the ex post facto clause of the Constitution.

U.S. Sentencing Guidelines Manual § 1B1.11; see also United States v. Larkin, 629 F.3d

177, 193 (3d Cir. 2010) (“Where an amendment to a section of the sentencing guidelines

occurs following the convicted offense conduct and the amendment results in harsher

penalties than were in effect at the time of the conduct, the ex post facto clause . . .

require[s] the District Court to apply the sentencing guidelines in effect on the date that

the offense of conviction was committed.”).



4
  The two-level reduction was generally applicable in cases in which the drug offense
involved crack and one or more controlled substances. U.S. Sentencing Guidelines
Manual § 2D1.1, app. n.10(D)(i) (2008). Thus, in Low‟s case his base offense level for
                                            5
       Under both the 2008 and 2010 guidelines, Low‟s base offense level was calculated

to be 32 pursuant to the guideline for drug offenses. While the 2008 Manual included a

two-level reduction for drug offenses involving crack cocaine as well as other controlled

substances, it also had a higher marijuana conversion for crack cocaine. The 2010

Supplement lowered the marijuana conversion for crack cocaine and eliminated the two-

level reduction, but after completing all appropriate drug conversions and adding the drug

quantities, Low‟s base offense level remained at 32. See U.S. Sentencing Guidelines

Supp. 1-26 (effective Nov. 1, 2010). Because application of the 2010 Supplement did not

result in a harsher penalty, no ex post facto concerns are present in this case.5

       Second, Low argues that the elimination of the two-level reduction was a

substantive amendment to the guidelines, and should not have had retroactive application

at his re-sentencing. In United States v. Marmolejos, we recognized “the established

principle that a post-sentencing amendment to a sentencing guideline or its comments




the quantity of combined drugs under the 2008 Manual was 34, but it was reduced to 32
pursuant to the two-level reduction.
5
  Low also maintains that the District Court should have treated the “one-book rule” as
advisory and should have applied both the two-level reduction from the 2008 guidelines
as well as the lower marijuana conversion from the 2010 supplement because otherwise
the end result of his guideline calculation remaining the same before and after the
enactment of the FSA “is fundamentally unfair.” Low‟s Brief 5. Under the guidelines, a
district court must apply the “Guidelines Manual in effect on a particular date . . . in its
entirety.” U.S. Sentencing Guidelines Manual § 1B1.11(b)(2) (emphasis added); see also
United States v. Saferstein, 673 F.3d 237, 243 (3d Cir. 2012). Thus, contrary to Low‟s
contention, the District Court could not apply provisions of the 2008 guidelines in
conjunction with the 2010 Supplement to the guidelines, but had to apply the entire
guidelines manual in effect at the time of Low‟s resentencing. In this case, as there were
                                              6
should be given effect if it „clarifies‟ the guideline or comment in place at the time of

sentencing,” while also noting that if an “amendment effects a substantive change in the

law, the defendant does not reap the benefit of the new provision.” 140 F.3d 488, 490 (3d

Cir. 1998) (emphasis added). Therefore, if a post-sentencing amendment “clarifies” a

guideline, the remedy would be a remand to give the district court an opportunity to

consider the amendment. Here, the 2010 Supplement, which eliminated the two-point

reduction, went into effect before Low‟s resentencing and the District Court considered

the elimination as part of Low‟s policy argument against the 18:1 crack/powder ratio.

Thus, there simply is no post-sentencing amendment for us to consider, much less

whether to apply it retroactively to Low‟s new sentence on appeal.

       Lastly, Low argues that the District Court never acknowledged the advisory role of

the guidelines post-Booker, and treated the “one-book rule” as mandatory. See United

States v. Booker, 543 U.S. 220 (2005). As previously discussed, the District Court was

required to apply the 2010 Guidelines Manual in its entirety, so long as there were no ex

post facto concerns. Additionally, the District Court appropriately followed the dictates

of Booker and the sentencing procedures outlined us in resentencing Low. Specifically,

the District Court correctly calculated Low‟s applicable guidelines range, noted the

mandatory minimum for the drug offense, ruled upon all motions for departure, and

„“after giving both parties an opportunity to argue for whatever sentence they deem[ed]


no ex post facto concerns, the 2010 Guidelines Manual and Supplement that was in effect
at Low‟s resentencing, was properly applied in its entirety.
                                            7
appropriate,‟ the court . . . „exercise[d] its discretion‟ through „meaningful consideration

[of] the § 3553(a) factors‟ before deciding on a sentence.” United States v. Merced, 603

F.3d 203, 215 (3d Cir. 2010) (quoting Gall v. United States, 552 U.S. 38, 49 (2007);

United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006)). Furthermore, the District

Court exercised its discretion in varying 15 months below the applicable guidelines range

and selected a sentence that “falls within the broad range of possible sentences that can be

considered reasonable in light of the § 3553(a) factors.” United States v. Wise, 515 F.3d

207, 218 (3d Cir. 2008). Accordingly, a review of the record demonstrates there are no

nonfrivolous issues with regard to the procedural or substantive reasonableness of Low‟s

new sentence.

                                             IV.

       For the foregoing reasons, we will affirm the judgment of sentence and grant

counsel‟s motion to withdraw. We also find, pursuant to Third Circuit L.A.R. 109.2(b),

that the issues presented in this appeal lack legal merit for the purposes of counsel filing a

petition for a writ of certiorari in the Supreme Court of the United States.




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