                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               ______________

                                     No. 10-3681
                                   ______________

                           UNITED STATES OF AMERICA

                                           v.

                            CASSIUS ALLEN HOLLINS,
                     a/k/a Casius Hollins, Cassius Hollins, “Cash”

                                                Cassius Allen Hollins,

                                                             Appellant
                                   ______________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                           (D.C. Crim. No. 1-09-00393-001)
                        Honorable Yvette Kane, District Judge
                                   ______________

                      Submitted under Third Circuit LAR 34.1(a)
                                  March 25, 2011

          BEFORE: FUENTES, SMITH, and GREENBERG, Circuit Judges

                                (Filed: March 31, 2011)
                                    ______________

                              OPINION OF THE COURT
                                  ______________

GREENBERG, Circuit Judge.

      This matter comes on before this Court on Cassius Allen Hollins’ appeal from a

judgment of conviction and sentence entered on August 26, 2010, in the District Court
following his plea of guilty to an information charging that on or about October 20, 2009,

to October 21, 2009, Hollins distributed, dispensed, and possessed a mixture and

substance containing a detectable amount of cocaine base in violation of 21 U.S.C. §§

841(a)(1) and (b)(1)(C). The prosecutor filed the information pursuant to a plea

agreement providing for the dismissal of a two-count indictment that previously had

charged Hollins with distribution and possession with intent to distribute 5 grams or more

of cocaine base on October 20, 2009, and October 21, 2009, in violation of 21 U.S.C. §§

841(a)(1) and 841(b)(1)(B). The District Court imposed a 70-month custodial sentence

on the conviction on the information to be followed by a three-year term of supervised

release. It also imposed a $100 special assessment and a $1000 fine.

       Continuing an appointment that the District Court had made, we appointed L. Rex

Bickley to represent Hollins on this appeal. Bickley has filed a motion pursuant to

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), to withdraw as Hollins’

counsel based on his determination “that an appeal of sentence in this matter would be

frivolous and meritless.” He served a copy of the motion on Hollins following which our

clerk sent Hollins a letter indicating that he could file a brief within 30 days explaining

why his conviction and/or sentence should be overturned. Hollins, however, has not filed

a pro se brief.

       Bickley has filed a brief pursuant to Anders raising one issue which he indicates is

not meritorious. The issue, which Bickley acknowledges he did not raise in the District

Court, is that Hollins’ criminal history category was calculated incorrectly because he

was given three criminal history points for each of two state court convictions even

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though he was sentenced for the two offenses on the same day, December 12, 2005. The

argument goes that inasmuch as the sentences were imposed on the same day they should

have been calculated as a single sentence for criminal history purposes, a treatment which

would have reduced his criminal history category from V to IV and yielded a lower

sentencing range.

       The District Court had jurisdiction under 18 U.S.C. § 3231 and we have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Inasmuch as the only issue

Hollins raises on this appeal is a legal issue involving the interpretation of the sentencing

guidelines we are exercising plenary review. See United States v. Givan, 320 F.3d 452,

463 (3d Cir. 2003).

       The material facts are not in dispute. As the presentence report sets forth, on

November 16, 2004, Hollins was arrested on a charge of receiving stolen property, and

on March 3, 2005, he was arrested for delivery of cocaine. Inasmuch as he was

sentenced on both charges on the same day, December 12, 2005, the sentences might

have been treated as a single sentence for criminal history purposes pursuant to U.S.S.G.

§ 4A1.2(a)(2). But that guidelines section precluded that treatment as it provides that if

“the defendant has multiple prior sentences, determine whether those sentences are

counted separately or as a single sentence” but “[p]rior sentences always are counted

separately if the sentences were imposed for offenses that were separated by an

intervening arrest.” The situation precluding treatment of the two sentences as a single

sentence described in section 4A1.2(a)(2) is the precise situation here.



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       We are satisfied that Bickley properly fulfilled his duties and, based on our review

of the record, that there are no non-frivolous issues that can be raised on Hollins’ behalf.

Moreover, the issue that Bickley has raised on behalf of Hollins is plainly not

meritorious. For the foregoing reasons Bickley’s motion to be relieved as counsel for

Hollins is granted and the judgment of conviction and sentence entered August 26, 2010,

will be affirmed.




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