                                               NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                       __________

                       No. 09-3224
                       __________

            UNITED STATES OF AMERICA

                            v.

              EDWARD MONTGOMERY,
                             Appellant.

               _______________________

      On Appeal from the United States District Court
           for the District of Middle Pennsylvania
                 (D.C. No. 1:08-CR-00155-1)
      District Judge: Honorable Christopher C. Conner
                ________________________

        Submitted under Third Circuit LAR 34.1 (a)
                   on March 25, 2010

Before: RENDELL, FUENTES and CHAGARES, Circuit Judges.

                   (Filed: May 14, 2010)


                     _____________

               OPINION OF THE COURT
                   _____________
CHAGARES, Circuit Judge.

       Counsel for Edward Montgomery has moved, pursuant to Anders v. California,

386 U.S. 738 (1967), for permission to withdraw as counsel in this case. For the reasons

that follow, we will grant the motion and affirm Montgomery’s sentence.1

                                             I.

       Because we write solely for the benefit of the parties, we will only briefly

summarize the essential facts. On March 26, 2009, Montgomery pleaded guilty to one

count of possession with intent to distribute five grams or more of cocaine base, in

violation of 21 U.S.C. § 841(a)(1). On April 8, 2009, the District Court conducted a plea

colloquy during which Montgomery acknowledged that the offense “carries with it a

statutory minimum term of imprisonment of five years.” Appendix 43. On July 20, 2009,

Montgomery was sentenced to, inter alia, five years of imprisonment. Montgomery filed

timely notice of appeal on July 29, 2009.

                                             II.

       Montgomery’s counsel petitions this Court to withdraw as attorney of record,

arguing that there are no non-frivolous issues that can be advanced on appeal. A copy of

defense counsel’s brief was furnished to Montgomery, and he was given thirty days to file

a brief on his own behalf. Montgomery timely filed a pro se brief arguing that the District




       1
         The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has
jurisdiction under 28 U.S.C. § 1291.

                                             2
Court committed plain error by miscalculating his criminal history category, thereby

rendering him ineligible for “a reduction from his (60) month mandatory minimum term

pursuant to § 5C1.2 of the [United States Sentencing G]uidelines.” Appellant’s Pro Se

Brief at 5.

       Section 5C1.2 of the Sentencing Guidelines limits the applicability of statutory

minimum sentences in certain cases, as set forth in 18 U.S.C. § 3553(f). For offenses

under 21 U.S.C. § 841, the court may impose a sentence without regard to any statutory

minimum where, inter alia, “the defendant does not have more than 1 criminal history

point.” 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2.

       At the time of his offense, Montgomery’s criminal history included a conviction in

state court for driving under the influence. The state court imposed a sentence of 48

hours to 1 year of imprisonment for that conviction. Under the Sentencing Guidelines,

this conviction yielded two criminal history points because Montgomery’s prior sentence

of imprisonment was “at least sixty days,” § 4A1.1, as measured by the “maximum

sentence imposed,” § 4A1.2(b). The District Court therefore correctly assigned two

criminal history points and properly concluded that the statutory minimum sentence

applied.

       Evaluation of an Anders brief requires a twofold inquiry: (1) whether counsel has

thoroughly examined the record for appealable issues and has explained why any such

issues are frivolous, and (2) whether an independent review of the record presents any



                                             3
non-frivolous issues. United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Where a

pro se brief is filed, “our examination of the record is informed by those issues raised in

Appellant’s pro se brief.” Id. at 301.

       Montgomery’s counsel combed through the record and concluded that there are no

appeal issues as to: (1) jurisdiction; (2) the procedural validity or voluntariness of the

guilty plea; or (3) the legality or reasonableness of the sentence. Likewise, our

independent review of “those portions of the record identified by [the] Anders brief” and

Montgomery’s pro se brief reveals no non-frivolous issue Montgomery might profitably

raise on appeal. See id. The District Court did not abuse its discretion by imposing the

mandatory minimum sentence under 21 U.S.C. § 841(b). Having considered the

arguments raised in Montgomery’s pro se brief, we conclude that counsel’s brief in this

case is adequate.

       Accordingly, we will grant counsel’s motion to withdraw and affirm

Montgomery’s sentence.




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