                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 12-2921
                                     _____________

                            UNITED STATES OF AMERICA

                                            v.

                                 BARRY L. HOLLAND,
                                          Appellant
                                   _____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                       (D.C. Crim. No. 10-cr-00243-002)
                     District Judge: Honorable Yvette Kane
                                  ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 18, 2013
                                    ____________

               Before: SMITH, CHAGARES and BARRY, Circuit Judges

                            (Opinion Filed: February 5, 2013 )
                                     ____________

                                        OPINION
                                      ____________

BARRY, Circuit Judge

       Appellant Barry L. Holland pled guilty to possession with intent to distribute

cocaine base in violation of 21 U.S.C. § 841(a)(1), and to being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g). He was sentenced to 140 months’
imprisonment. Holland filed pro se motions for reduction of sentence under 18 U.S.C.

§ 3582(c)(2), all of which were denied. He appealed. Counsel has filed a motion to

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 the order of the

District Court and grant counsel’s motion to withdraw.

                                             I.

       On September 1, 2010, Holland and Devon Bullock, Jr., were indicted. Holland

was charged with unlawful possession of an unspecified amount of crack cocaine with the

intent to distribute (Count III), possession of a firearm and ammunition during and in

relation to a drug trafficking offense (Count IV), and possession of a firearm after having

been convicted of a felony (Count V). 1 On March 11, 2011, pursuant to a plea agreement

Holland agreed to plead guilty to Counts III and V.

       In the presentence report, the probation office calculated Holland’s total offense

level to be 29, which represented a base offense level of 32 less 3 points for acceptance of

responsibility. 2 His criminal history category was VI given that he was a career offender

under § 4B1.1 of the sentencing guidelines. The result was a guideline range of 151 to

188 months.

       At sentencing, Holland objected to his characterization as a career offender and



1
  Bullock pled guilty and did not appeal his sentence.
2
  Before any Chapter Four enhancements were applied, Holland’s base offense level of 24
resulted from the firearms sentencing guideline, U.S.S.G. § 2K2.1(a)(2) -- the offense
                                              2
asked the District Court to downward depart to a lower criminal history category.

Agreeing that his criminal history category was overstated, the District Court departed

down to a category V. With the departure, Holland’s guideline range became 140 to 175

months. Holland was then sentenced to 140 months’ imprisonment on each of Counts III

and V, to be served concurrently.

       Holland filed a pro se motion for a reduction of sentence pursuant to 18 U.S.C.

§ 3582(c) on February 21, 2012, and the District Court appointed the Federal Public

Defender’s Office to represent him. Three days later, Holland filed a second pro se

motion to reduce his sentence and on March 26, 2012, he filed a third. 3 In all three of his

motions, he asserted that he was eligible for a sentence reduction under Amendment 750

to the sentencing guidelines.

       On June 22, 2012, the District Court denied Holland’s motions, finding that he was

not sentenced pursuant to the crack cocaine guidelines, but rather was sentenced pursuant

to the career offender guidelines, guidelines that were not impacted by Amendment 750.

                                            II. 4

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


level for the most serious of the counts to which Holland pled guilty. The crack cocaine
guidelines were not used to set his base offense level.
3
  Holland advised the District Court, in his third motion, that he had been advised by
counsel that his motion had no merit. He nonetheless asked that his motion be considered,
citing his post-sentencing rehabilitative progress.
4
  The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291.

                                              3
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 the Court of his or her conclusions,

and 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.

       Under 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


                                              4
quotation marks and citation omitted). 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.

       The Fair Sentencing Act (“FSA”) of 2010 reduced the crack/powder ratio to

approximately 18:1 and changed the threshold quantities of crack cocaine which trigger

mandatory minimum sentences under 21 U.S.C. § 841(b). Fair Sentencing Act of 2010,

Pub. L. No. 111–220, § 2, 124 Stat. 2372, 2372 (2010). The FSA also vested the

Sentencing Commission with emergency authority to promulgate comparable changes in

the pertinent sentencing guidelines. Id. at § 8. As a result, the Sentencing Commission

promulgated an emergency amendment altering the offense levels in Section 2D1.1 for

crack cocaine offenses and subsequently promulgated Amendment 750 authorizing courts

to reduce previous terms of imprisonment based on the former crack cocaine guidelines.

U.S. Sentencing Guidelines Supp. App. C, amend. 750 (2011) (effective Nov. 1, 2011).

       Holland sought a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2), which

provides, in relevant part, that a district court may modify a defendant’s term of

imprisonment when the defendant was sentenced “to a term of imprisonment based on a

sentencing range that has subsequently been lowered by the Sentencing Commission.” 18

U.S.C. § 3582(c)(2). The District Court concluded that Holland was not entitled to a

sentence reduction because he was sentenced pursuant to the career offender guidelines,

not the crack cocaine guidelines, and Amendment 750 simply did not apply. We agree.


                                             5
See United States v. Barney, 672 F.3d 228, 232 (3d Cir. 2012) (holding that the applicable

guideline range for a career offender receiving a departure under U.S.S.G. § 4A1.3 is “the

range dictated by the Career Offender Guidelines, not [the post-] departure range”); see

also United States v. Thompson, 682 F.3d 285, 291 (3d Cir. 2012) (“To meet the first

condition of § 3582(c)(2), a defendant’s sentence must be based on the actual, calculated

Guidelines range upon which the district court relied at sentencing.”). Accordingly, we

accept the Anders brief filed by counsel and find there are no nonfrivolous issues for

appeal.

                                             IV.

       We will affirm the order of the District Court 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 and do not require the filing of a petition for writ

of certiorari in the Supreme Court of the United States.




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