                                                           NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                       No. 12-1273
                                      _____________

                            UNITED STATES OF AMERICA

                                               v.

                                       JAMES BIRT,
                                              Appellant
                                      _____________

                  On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                 (No. 1-02-cr-00286)
               District Judge: The Honorable Chief Judge Yvette Kane
                               _____________________

                      Submitted Under Third Circuit L.A.R. 109.2
                                 September 14, 2012

                   Before: SMITH and CHAGARES, Circuit Judges,
                          and ROSENTHAL, District Judge1

                                 _____________________

                                   JUDGMENT ORDER
                                 _____________________

       On June 9, 2003, Jamell Birt pleaded guilty under a plea agreement to a one-

count information charging him with possession with intent to distribute crack

1 The Honorable Lee H. Rosenthal, United States District Judge for the Southern District of
Texas, sitting by designation.
cocaine, in violation of 21 U.S.C. ' 841(a)(1). At the February 27, 2004

sentencing hearing, the district judge determined that Birt was a career offender

with a criminal history category of VI and an adjusted total offense level of 34,

yielding an advisory guideline range of 262 to 327 months. The District Court

imposed the statutory maximum of 240 months.

      After Birt=s sentencing, the United States Sentencing Commission amended

the Sentencing Guidelines by increasing the quantity of crack cocaine required for

mandatory minimum prison terms. U.S.S.G. app. C, amend. 750 (2011). The

Commission made this amendment retroactive effective November 1, 2011.

U.S.S.G. app. C, amends. 750, 759 (Supp. May 1, 2008). On November 23, 2011,

Birt, represented by counsel, moved to reduce his sentence under 18 U.S.C. '

3582(c)(2). On January 13, 2012, the District Court granted the motion and

lowered the sentence to the bottom of the revised applicable guideline range, which

was 210 to 240 months. Birt filed a notice of appeal, challenging the amount of

the reduction as insufficient.

      Birt=s court-appointed counsel has moved to withdraw under Anders v.

California, 386 U.S. 738 (1967). An Anders brief must demonstrate that counsel

has Athoroughly examined the record in search of appealable issues,@ and the brief

must Aexplain why the [identified] issues are frivolous.@ United States v. Youla,

                                          2
241 F.3d 296, 300 (3d Cir. 2001). We must satisfy ourselves that counsel

adequately fulfilled the Anders requirements and that an independent review of the

record presents no nonfrivolous issues. Id. (citing United States v. Marvin, 211

F.3d 778, 780 (3d Cir. 2000)); see also Anders, 386 U.S. at 744 (explaining that the

court must proceed, Aafter a full examination of all the proceedings, to decide

whether the case is wholly frivolous.@). If the review fails to reveal any

nonfrivolous issues, we Amay grant counsel=s request to withdraw and dismiss the

appeal.@ Id.

         Counsel has fulfilled his obligation under Anders. His brief sets out the

relevant facts and correctly explains that the District Court=s reduction of the

sentence to the bottom of the amended applicable guideline range was as much as

the statute2 and guidelines3 permitted and was consistent with Booker v. United

States, 543 U.S. 220 (2005), because the original sentence was within the guideline

range. See Dillon v. United States, 560 U.S. __, 130 S. Ct. 2683, 2692 (AGiven the

limited scope and purpose of ' 3582(c)(2), we conclude that proceedings under

that section do not implicate the interests identified in Booker.@). Counsel also

explains that Birt received the reduction that his motion asked the District Court to
2
    18 U.S.C. ' 3582(c)(2).
3
 U.S.S.G. ' 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline
Range) (Policy Statement).

                                            3
provide. Based on our review of the record, we agree with Birt=s counsel that there

is no nonfrivolous issue meriting consideration on appeal.

       On consideration whereof, it is now hereby ADJUDGED AND ORDERED
by this Court that the order of the District Court entered January 17, 2012 is hereby
AFFIRMED. We grant counsel’s motion to withdraw. We certify that the issues
presented in the appeal lack legal merit for purposes of counsel filing a petition for
writ of certiorari with the Supreme Court. 3d Cir. L.A. R. 109.2(b).

                                              By the Court,

                                              /s/ Lee H. Rosenthal
                                              District Judge

ATTEST:

/s/Marcia M. Waldron
Clerk

Dated: September 19, 2012
trg/cc:     William A. Behe, Esq.
            Jamell Brit
            Ronald A. Krauss, Esq.




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