                                                      NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                     No. 14-1186
                                   _______________

                          UNITED STATES OF AMERICA,

                                           v.

                            JUAN LEDESMA-NOLASCO,
                                                Appellant
                                _______________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                         (D.C. Crim. No. 2-12-cr-00614-001)
                     District Judge: Honorable Legrome D. Davis
                                  _______________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  December 8, 2014

              Before: FUENTES, FISHER, and KRAUSE, Circuit Judges

                              (Filed: December 22, 2014)

                                   _______________

                                       OPINION
                                     ____________





 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge:

       Juan Ledesma-Nolasco pled guilty to drug charges arising from his transportation

of large quantities of heroin and methamphetamine across the country in his tractor-

trailer. After being sentenced to 160 months in prison, he filed a notice of appeal. His

counsel certifies that all possible grounds for appeal are frivolous and seeks to withdraw

as counsel pursuant to Anders v. California, 386 U.S. 738 (1967). Ledesma-Nolasco has

filed a pro se brief challenging his conviction and sentence.

       For the following reasons, we affirm the District Court’s judgment of conviction

and sentence and grant counsel’s motion to withdraw.1

                                             I.

       Acting on intelligence from a confidential informant, law enforcement stopped and

searched Ledesma-Nolasco’s tractor-trailer, discovering nearly 15 kilograms of heroin

and over 10 kilograms of methamphetamine. Ledesma-Nolasco entered an open plea of

guilty to one count of conspiracy to possess heroin and methamphetamine with intent to

distribute and one count of possession with intent to distribute. His post-arrest interview

revealed that he had transported drugs on previous occasions and was responsible for

transporting a total of 16.98 kilograms of heroin, 19.01 kilograms of methamphetamine,

and 8 kilograms of cocaine.

       At sentencing, the District Court rejected Ledesma-Nolasco’s argument that he


1
  We note, however, that a recent amendment to the Sentencing Guidelines may provide
Ledesma-Nolasco with a basis to file a motion with the District Court seeking a reduction
in his sentence. See discussion infra Part III.
                                              2
was a minor participant in the criminal activity within the meaning of U.S.S.G. § 3B1.2. It

determined that his total offense level was 34 and that his criminal history category was I,

yielding a Guidelines range of 151 to 188 months in prison. After considering the factors

outlined in 18 U.S.C. § 3553(a), the Court sentenced Ledesma-Nolasco to 160 months of

incarceration.

                                             II.

       When counsel submits an Anders brief, “[w]e must determine: 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.” Simon

v. Gov’t of the Virgin Islands, 679 F.3d 109, 114 (3d Cir. 2012).2

       The Anders brief adequately explains that all possible issues for appeal are

frivolous. The District Court had jurisdiction; the plea colloquy was thorough; Ledesma-

Nolasco’s waiver of rights was knowing, voluntary, and intelligent; and the sentence

imposed was procedurally and substantively reasonable. Our independent review of the

record reveals nothing to the contrary.

       In his pro se brief, Ledesma-Nolasco asserts three grounds for appeal, none of

which has arguable merit. First, he claims that the District Court erred in its findings with

respect to his motion to suppress. But the District Court made no such findings; Ledesma-

Nolasco pled guilty the day before the suppression hearing. At his plea hearing, Ledesma-


2
  The District Court had subject-matter jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction to review the District Court’s judgment of conviction and sentence pursuant
to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
                                              3
Nolasco stated that he understood that he was giving up his right to seek the suppression

of evidence. And at sentencing, Ledesma-Nolasco’s counsel indicated that he could not

have pursued the suppression motion in good faith.

       Ledesma-Nolasco’s second contention is that he did not understand the factual

basis provided by the Government in support of his convictions. This argument is belied

by the record. After the Government recited the evidence it would introduce at trial, the

Court asked Ledesma-Nolasco whether he had any “corrections or amendments to the

facts.” Ledesma-Nolasco responded, “No, everything is fine.” (App. 52-53.)

       Ledesma-Nolasco’s final argument is that his sentence was procedurally and

substantively unreasonable and that the District Court erred in failing to award a full

three-point reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(b).

The District Court properly declined to award the third point because “a motion from the

government is normally a necessary predicate to the granting of a downward adjustment

under § 3E1.1(b).” United States v. Drennon, 516 F.3d 160, 162 (3d Cir. 2008). While

there are constitutional constraints on the Government’s discretion, there is no indication

that its refusal to make such a motion here was impermissible. See id. at 162-63.

       Nor was the sentence procedurally or substantively unreasonable for any other

reason. The District Court had broad discretion in deciding whether to apply a mitigating-

role adjustment, and its determination that the adjustment was unwarranted was not

clearly erroneous. See United States v. Self, 681 F.3d 190, 200-01 (3d Cir. 2012). The

calculated Guidelines range was therefore permissible, and the District Court elected to


                                             4
impose a sentence within that range (and below the statutory maximum) only after

considering all of the relevant factors.

       Accordingly, we affirm the judgment of conviction and sentence.

                                            III.

       One additional point deserves mention. The drug quantity table in § 2D1.1(c) of

the Guidelines was recently amended to lower the sentencing ranges applicable to drug

offenders. Had Ledesma-Nolasco been sentenced according to the new drug quantity

table, his base offense level would have been lower by two levels.

       The amendment went into effect on November 1, 2014, nine months after

Ledesma-Nolasco was sentenced. See United States Sentencing Commission Notice (May

6, 2014), 79 Fed. Reg. 25996-02. The District Court properly applied the Guidelines in

effect at the time of sentencing, and we may not apply the amendment retroactively on

appeal. See U.S.S.G. § 1B1.11; United States v. Wise, 515 F.3d 207, 220 (3d Cir. 2008).

       Ledesma-Nolasco may, however, file a motion with the District Court seeking a

reduction in his term of imprisonment. See 18 U.S.C. § 3582(c)(2); Wise, 515 F.3d at 220-

21. And the District Court may reduce his sentence, provided that the effective date of the

order is November 1, 2015, or later. See U.S.S.G. § 1B1.10(a), (d), (e)(1), cmt. 6.

                                            IV.

       For the foregoing reasons, we affirm the District Court’s judgment of conviction

and sentence and grant counsel’s motion to withdraw.




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