                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 12-2300
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.
                              STEVEN ALLISON SMITH,
                                     a/k/a “FACE”
                                 a/k/a TERRY ELLIS

                                  Steven Allison Smith,
                                        Appellant
                                     _____________

                     Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Criminal No. 1-02-cr-00295-001)
                    District Judge: Honorable Christopher C. Conner
                                     _____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 7, 2013

               Before: RENDELL, FISHER and JORDAN, Circuit Judges

                           (Opinion Filed: January 14, 2013 )
                                    _____________

                               OPINION OF THE COURT
                                   _____________

RENDELL, Circuit Judge.

       Pursuant to a binding plea agreement, Steven Allison Smith pleaded guilty to

possession with the intent to distribute an unspecified amount of cocaine base in violation
of 21 U.S.C. § 841(a). The District Court sentenced Smith to 144 months of

imprisonment—the term specified in the plea agreement. Smith filed a motion to have

his sentence reduced pursuant to 18 U.S.C. § 3582(c)(2), which the District Court denied.

Smith appeals this decision, and his counsel has moved to withdraw under Anders v.

California, 386 U.S. 738 (1967). For the reasons discussed below, we will grant

counsel’s motion to withdraw and affirm the District Court’s ruling.

                                             I.

       Because we write solely for the parties, we recount only those facts essential to

our disposition. On October 6, 2004, pursuant to a binding plea agreement, Smith

pleaded guilty to possession with intent to distribute an unspecified amount of crack

cocaine. The plea agreement provided for a sentence of 144 months’ imprisonment,

which the District Court imposed on February 2, 2005. Had Smith not entered into the

plea agreement, he would have faced a guideline range of 360 months to life if convicted

on all charges.

       On January 23, 2012, Smith filed a pro se motion to reduce his sentence pursuant

to 18 U.S.C. § 3582(c)(2). Smith was appointed counsel and subsequently filed a new

motion contending that although he was sentenced according to a Rule 11(c)(1)(C)

agreement, he was still eligible for relief under Freeman v. United States, 131 S.Ct. 2685

(2011) (plurality) and Amendment 750 to the Sentencing Guidelines. The District Court

agreed that Smith was eligible for consideration of a sentence reduction under Freeman

but denied Smith’s request, finding that the 18 U.S.C. § 3553(a) factors did not weigh in

favor of reducing his sentence. In a thorough and well-reasoned opinion, the Court

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repeatedly stressed the seriousness of Smith’s conduct and that he benefited “significantly

from the binding plea agreement.” In reaching this conclusion, the District Court

considered facts that were not stipulated to in the plea agreement. Smith contends that

this was an abuse of discretion and appeals the District Court’s decision. His counsel has

moved to withdraw.

                                             II.

       Counsel may move to withdraw from representation if, after a thorough

examination of the District Court record, he is “persuaded that the appeal presents no

issue of even arguable merit….” 3d Cir. L.A.R. 109.2(a); see also Anders, 386 U.S. at

744 (“[I]f counsel finds his case to be wholly frivolous, after a conscientious examination

of it, he should so advise the court and request permission to withdraw.”). To evaluate an

Anders motion to withdraw, this Court analyzes: (1) whether counsel has thoroughly

examined the record for appealable issues and has explained in a brief why any such

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

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

conducting an independent review of the record, the Court confines its review to those

issues and “those portions of the record identified by an adequate Anders brief” and “to

those issues raised in Appellant’s pro se brief.” Id. at 301. If this analysis demonstrates

that the identified issues are frivolous then the Court must “grant counsel’s Anders

motion, and dispose of the appeal without appointing new counsel.” 3d Cir. L.A.R.

109.2(a).



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         We are satisfied that counsel has searched the record, identified potentially

appealable issues, and adequately explained why those issues are frivolous. In addition,

our own review of the record, including a review of Smith’s pro se brief, confirms that

the District Court appropriately balanced the 18 U.S.C. § 3553(a) factors in denying

Smith’s request for a sentence reduction. As the District Court succinctly stated, “Given

the serious nature of the offense, Smith’s significant and undeterred criminal conduct and

the substantial benefit he received from the binding plea agreement…a reduction in

Smith’s sentence is unwarranted.” Moreover, there is no merit to Smith’s contention that

the District Court erred in considering factors included in the Pre-sentence Report but

that we were not stipulated to in the plea agreement. Freeman explicitly states that in

evaluating whether a sentence should be reduced, the District Court should consider the

18 U.S.C. § 3553(a) factors and may consider whether the government made significant

concessions in the agreement. See, e.g. 131 S.Ct. at 2694 (plurality); id. at 2699 & n.6

(Sotomayor, J., concurring in the judgment). Accordingly, we find no appealable issue of

merit.

                                              III.

         For the foregoing reasons, we will grant counsel’s motion to withdraw and affirm

the District Court’s denial of a sentence reduction.




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