                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 10-2045
                                     ____________

                           UNITED STATES OF AMERICA

                                            v.

                           JIMMY THOMAS MATHIS, JR.,

                                                          Appellant
                                     ____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (D.C. No. 1-08-cr-00407-001)
                     District Judge: Honorable Sylvia H. Rambo
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 16, 2010

       Before: JORDAN, HARDIMAN and VAN ANTWERPEN, Circuit Judges.

                               (Filed: December 16, 2010)
                                      ____________

                              OPINION OF THE COURT
                                   ____________

HARDIMAN, Circuit Judge.

      Jimmy Thomas Mathis, Jr. appeals the District Court’s judgment of sentence

following his guilty plea. His attorney has moved to withdraw under Anders v.

California, 386 U.S. 738 (1967). For the reasons that follow, we will grant counsel’s
motion to withdraw and affirm the District Court’s judgment.

                                             I

       Because we write for the parties, we recite only the facts and procedural history

necessary to our decision.

       Pursuant to a written plea agreement, Mathis pleaded guilty to one count of

distribution and possession with intent to distribute five grams or more of crack cocaine,

in violation of 21 U.S.C. § 841(a)(1). The Presentence Investigation Report (PSR)

calculated Mathis’s base offense level at 32, pursuant to § 2D1.1 of the United States

Sentencing Guidelines (USSG), and added a two-level enhancement for his possession of

a dangerous weapon. Finding that Mathis qualified as a career criminal under USSG

§ 4B1.1, the PSR applied a criminal history category of VI, yielding a Guidelines

imprisonment range of 262–327 months. The District Court adopted the PSR’s offense

level calculation of 34, but provided a three-level downward adjustment for acceptance of

responsibility, lowering Mathis’s offense level to 31. Mathis then requested a downward

departure, asserting that the career offender designation over-represented the seriousness

of his criminal history. After giving “very, very serious thought to [Mathis’s] criminal

history,” the District Court denied his request, noting that Mathis’s prior convictions had

“apparently not deterred him at all from escalating his drug activities.” App. 59.

However, the District Court agreed to vary downward one level to account for the




                                             2
crack/powder disparity in sentencing. Although Mathis asked the District Court to vary

downward two levels in order to apply a one-to-one ratio between crack and powder

cocaine, the Court stated “it has been my standard practice to reduce one level from

whatever the offense level was.” App. 58.

       With an adjusted offense level of 30 and a criminal history category of VI,

Mathis’s final Guidelines imprisonment range was 168–210 months. The District Court

then varied downward and imposed a sentence of 151 months imprisonment, finding “that

a greater level would be more than necessary to comport with the purposes of

sentencing.” App. 68.

       Mathis filed a timely notice of appeal of the District Court’s judgment. Counsel

now seeks to withdraw pursuant to Anders, asserting that there are no nonfrivolous issues

for appeal. Mathis has filed a pro se brief in opposition to counsel’s brief. The

government has filed a brief supporting counsel’s Anders motion.

                                             II

       We exercise plenary review over an Anders motion. See Penson v. Ohio, 488 U.S.

75, 82-83 & n.6 (1988). Under Anders, our inquiry is two-fold: (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 non-frivolous issues.

United States v. Coleman, 575 F.3d 316, 319 (3d Cir. 2009).




                                             3
       The first prong requires counsel “to satisfy the court that [he] has thoroughly

examined the record in search of appealable issues, and . . . explain[ed] why the issues are

frivolous.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Counsel need not

raise and reject every possible claim; rather, he must “provide[] sufficient indicia that he

thoroughly searched the record and the law in service of his client so that we might

confidently consider only those objections raised.” Id. (quoting United States v. Marvin,

211 F.3d 778, 781 (3d Cir. 2000)). “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,” as well as issues raised in a defendant’s pro se brief. Id. at

301.

       In his Anders brief, Mathis’s counsel identifies five potential issues for appeal, and

explains why each is frivolous. Counsel explains that: (1) the District Court had

jurisdiction to sentence Mathis under 18 U.S.C. § 3231; (2) Mathis’s guilty plea was

knowing and voluntary; (3) the Court accurately calculated Mathis’s Guidelines

imprisonment range; (4) we lack jurisdiction to review the Court’s discretionary decision

not to depart downward; and (5) the Court’s imposition of a one-level downward variance

to account for the crack-powder disparity was reasonable.

       Our review of the record confirms counsel’s assessment that there are no

nonfrivolous issues for appeal. Mathis does not contest the District Court’s jurisdiction




                                               4
over his offense, nor does he challenge the sufficiency of the Court’s colloquy. Indeed,

the record shows the District Court addressed Mathis in open court to confirm that he

understood the rights he was forfeiting and the terms of his plea agreement. See FED. R.

CRIM. P. 11(b). Rather, in his pro se brief, Mathis claims the District Court abused its

discretion by failing to properly calculate his total offense level and by failing to

recognize its authority to grant a downward departure and a larger downward variance.

       We review the District Court’s sentencing decisions for abuse of discretion,

looking first for procedural error and then examining the sentence for substantive

reasonableness. United States v. Wise, 515 F.3d 207, 217-18 (3d Cir. 2008). A district

court commits procedural error—and thereby abuses its discretion—when it selects a

sentence based on clearly erroneous facts. Id. at 217.

       Mathis “calls into question” the District Court’s findings of fact regarding the

quantity of drugs he sold and his possession of a weapon. However, Mathis admitted at

his plea hearing that he sold a total of two ounces of cocaine base to various confidential

informants, amounting to more than the 50 grams necessary to trigger a base offense level

of 32. Moreover, the PSR notes that when Mathis was arrested, officers searched his

girlfriend’s apartment and recovered a stolen .45 caliber Glock pistol. Mathis told the

officers that he had purchased the gun from two men who approached him on the street

one month prior to his arrest. Mathis also admitted at his plea hearing that he possessed a




                                               5
dangerous weapon in connection with his drug trafficking activities. Thus, ample

evidence supported the District Court’s calculation of Mathis’s base offense level and its

addition of a two-level enhancement for gun possession.

        Mathis also claims the District Court’s refusal to depart from the Guidelines

pursuant to USSG § 4A1.4(b) was an abuse of discretion. As Mathis’s counsel explains,

we lack jurisdiction to review a district court’s discretionary decision not to depart

downward. United States v. Cooper, 437 F.3d 324, 332-33 (3d Cir. 2006). Jurisdiction

only arises if a district court’s refusal to depart downward is based on its mistaken belief

that it lacks the discretion to depart. United States v. Dominguez, 296 F.3d 192, 194-95

(3d Cir. 2002). Here, the Court recognized that while it had the authority to depart

downward, Mathis’s “escalating” criminal conduct warranted a more severe sanction.

Because the District Court’s decision was discretionary, we have no jurisdiction to review

it. 1

        Mathis next argues that the District Court erroneously believed that its power to


        1
         Mathis also argues that his counsel erred in suggesting that “[a]t most the District
Court had authority—if persuaded that the criminal history category substantially over-
represented the seriousness of Appellant’s criminal history—to depart downward just one
criminal history category, and not any offense levels.” Anders Br. 16. However, USSG
§4A1.3(b)(3)(A) states that a sentencing court may not depart more than one criminal
history category if a defendant is “a career offender within the meaning of §4B1.1.”
Here, the District Court refused to depart downward under §4A1.3(b) even one criminal
history category. Thus, counsel’s characterization of the one-level limitation on
downward departures for career criminals had no effect on the District Court’s sentence.


                                              6
vary downward based on policy disagreements with the Guidelines was limited. He cites

United States v. Corner, 598 F.3d 411 (7th Cir. 2010), for the proposition that while “[n]o

judge is required to sentence at variance with a Guideline, . . . every judge is at liberty to

do so.” Id. at 416. But nothing in the record suggests that the District Court believed it

could not vary from the Guidelines. On the contrary, the District Court varied downward

one level based on its policy disagreement with the crack/powder disparity.

       Mathis insists, however, that the District Court should have varied downward not

one, but two levels, to eliminate any disparity between his sentence and the sentence

which would have been imposed had he been convicted of distributing powder cocaine.

He notes that in United States v. Russell, 2009 U.S. Dist. LEXIS 70714 (W.D. Pa. 2009),

the district court “concluded that there are sound policy reasons for adopting a 1-to-1

crack to powder ratio for all crack cocaine sentencings.” Id. at *4.

       However, Kimbrough v. United States, 552 U.S. 85 (2007), and its progeny

require no more from a sentencing court than a recognition of its discretion to vary

downward and a “sufficiently compelling” explanation to support any variance it applies.

United States v. Lychock, 578 F.3d 214, 219 (3d Cir. 2009) (quoting Gall v. United

States, 552 U.S. 38, 50 (2007)). Here, the District Court recognized—and exercised—its

discretion to vary downward, and it provided reasoned support for varying only one level,

i.e., that it did not have “enough empirical data” to fashion its own ratio, but recognized




                                               7
the need to reduce unwarranted disparities in sentencing. App. 59-60. Thus, this basis

for appeal is frivolous.

       Finally, Mathis’s sentence “reflects rational and meaningful consideration of the

factors enumerated in 18 U.S.C. § 3553(a).” United States v. Tomko, 562 F.3d 558, 568

(3d Cir. 2009) (en banc) (quoting United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007)

(en banc)). The Court considered Mathis’s “escalating” criminal history, ongoing drug

use, employment history, relationship with his family, and cooperation with authorities.

In the end, the Court imposed a sentence seventeen months below the low end of the

Guidelines range. Because the sentence imposed “falls within the broad range for

possible sentences that can be considered reasonable in light of the § 3553(a) factors, we

must affirm.” Wise, 515 F.3d at 218.

                                            III

       Counsel adequately fulfilled the requirements of Anders. Because our independent

review of the record fails to reveal any nonfrivolous ground for appeal, we will grant

counsel’s motion to withdraw and affirm the District Court’s judgment of sentence.




                                             8
