                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-20-2008

USA v. Alamo
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3688




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"USA v. Alamo" (2008). 2008 Decisions. Paper 639.
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                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                    _____________

                                     No. 06-3688
                                    _____________

                           UNITED STATES OF AMERICA

                                            v.

                               ALEXANDER ALAMO,

                                           Appellant


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                    03-cr-008121
                          (Honorable James Knoll Gardner)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 16, 2008

                     Before: McKEE and GARTH, Circuit Judges,
                         and IRENAS, Senior District Judge *

                                (Filed:August 20, 2008)


                              OPINION OF THE COURT


McKee, Circuit Judge.


   *
   The Honorable Joseph E. Irenas, Senior District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
       Alexander Alamo’s attorney has filed a motion to withdraw as counsel, and

submitted a brief pursuant to Anders v. California, 386 U.S. 738 (1967). We deny his

motion because further action will be needed on behalf of Alamo. In accordance with the

then mandatory nature of the Guidelines, the district court sentenced Alamo to 276

months of incarceration, followed by 10 years of supervised release. On direct appeal,

we vacated his sentence and remanded to the district court in light of the Supreme Court’s

decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005). On remand, the

District Court reimposed the same sentence.

       Third Circuit Local Appellate Rule 109.2(a) provides: “[w]here, upon review of

the district court record, trial counsel is persuaded that the appeal presents no issue of

even arguable merit, trial counsel may file a motion to withdraw and supporting brief

pursuant to Anders v. California . . .”. See also, United States v. Youla, 241 F.3d 296,

300 (3d Cir. 2001).

       We agree that there are no nonfrivilous issues for appeal. However, after Alamo’s

counsel filed his Anders brief, the Supreme Court decided Kimbrough v. United States,

128 S. Ct. 558 (2007), wherein the Court clarified that “it would not be an abuse of

discretion for a district court to conclude when sentencing a particular defendant that the

crack/powder disparity yields a sentence greater than necessary to achieve § 3553(a)’s

purposes . . . .” 128 S. Ct. at 575. In addition, the United States Sentencing Commission

has since adopted Amendment 706 modifying the Guideline ranges applicable to crack

                                              2
cocaine offenses. Amendment 706 decreases the base offense levels for crack cocaine

offenses by two levels. See U.S.S.G. § 2D1.1.

       18 U.S.C. § 3582(c)(2) provides:

       in the case of 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 pursuant to 28 U.S.C. 994(o), upon
       motion of the defendant or the Director of the Bureau of Prisons, or on its
       own motion, the court may reduce the term of imprisonment, after
       considering the factors set forth in section 3553(a) to the extent that they are
       applicable, if such a reduction is consistent with applicable policy
       statements issued by the Sentencing Commission.

       Since the district court sentenced Alamo without the benefit of the Supreme

Court’s decision in Kimbrough, or the retroactive change in the Guidelines, we will

dismiss the appeal without prejudice to Alamo’s right to file an appropriate motion in the

district court pursuant to 18 U.S.C. § 3582(c)(2). We take no position regarding the

propriety of any sentence the district court may decide to impose.




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