                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 12-3872
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                                   JUSTIN DENNIS,

                                           Appellant
                                    _____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                (No. 1-09-cr-00270-001)
                        District Judge: Hon. Sylvia H. Rambo
                                    _____________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   June 27, 2013

            Before: FUENTES, FISHER, and CHAGARES, Circuit Judges.

                                (Filed: August 6, 2013)
                                     ____________

                                      OPINION
                                    ____________

CHAGARES, Circuit Judge.

      Defendant Justin Dennis appeals the District Court’s denial of his motion for a

reduction of sentence. His attorney seeks to withdraw as counsel pursuant to Anders v.
California, 386 U.S. 738 (1967). For the reasons that follow, we will grant the motion to

withdraw and affirm the denial of Dennis’s motion for a reduction of sentence.

                                              I.

       Dennis pleaded guilty in October 2009 to one count of distribution and possession

with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1). On

February 16, 2010, Dennis was sentenced to 140 months of imprisonment, to be followed

by a three-year period of supervised release. The District Court arrived at Dennis’s

sentence after assigning Dennis an advisory Sentencing Guidelines offense level of 28

and identifying him as a career offender. The District Court rejected defense counsel’s

argument at the sentencing hearing that the career-offender determination overstated

Dennis’s criminal history, reasoning that “this is a man who’s just determined that he’s

just bound to break the law.” Appendix (“App.”) 32.

       The sentencing court calculated Dennis’s sentence in the following manner.

Based on the court’s finding that Dennis was responsible for between 150 and 500 grams

of crack cocaine, Dennis’s base offense level was determined to be 32. Dennis was

designated a “career offender,” a classification that did not increase his offense level, but

added one level to his criminal history category, making it a VI. See U.S. Sentencing

Guidelines § 4B1.1(b). Dennis also received a 3-point adjustment in offense level due to

his acceptance of responsibility by pleading guilty, resulting in an offense level of 29.

The court then applied a 1-point variance “based on the disparity between crack cocaine

and powder cocaine,” App. 42, making his final offense level 28. The court therefore

found that Dennis’s range under the advisory Sentencing Guidelines was between 140

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and 175 months of imprisonment, and sentenced Dennis at the bottom of that range.

Dennis appealed, and this Court affirmed his sentence. United States v. Dennis, 412 F.

App’x 452 (3d Cir. 2011).

       Dennis then filed a sentence reduction motion pro se under 18 U.S.C. § 3582(c).

The court appointed the Federal Public Defender to represent him, and appointed counsel

filed a brief to supplement Dennis’s pro se motion. On September 18, 2012, the District

Court denied the motion for a sentence reduction, holding that Dennis’s offense level was

based on his status as a career offender. Dennis appealed that decision, and his appointed

counsel now moves to withdraw pursuant to Anders v. California.

                                             II.

       Defense counsel may move to withdraw from representation if, after a thorough

examination of the District Court record, he or she 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.”). When

presented with an Anders motion to withdraw, we ask: (1) whether counsel has

thoroughly examined the record for appealable issues and explained why any such issues

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

nonfrivolous issues. United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). If “the

Anders brief initially appears adequate on its face,” the second step of our inquiry is

“guided . . . by the Anders brief itself.” Id. at 301 (quotation marks omitted).



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                                               III.

         Dennis’s appointed counsel seeks to withdraw from Dennis’s appeal of the denied

motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). The Anders brief

submitted by counsel provides a detailed account of the facts and procedural history of

the case, and identifies why a § 3582(c)(2) reduction is not warranted under these

circumstances. We are satisfied that counsel has examined the record for appealable

issues and has adequately explained why such issues are frivolous. We undertake our

own thorough examination of the record to determine whether any nonfrivolous issues

exist.

         Dennis’s § 3582(c) motion argued that Amendment 750 to the Sentencing

Guidelines (amended by Amendment 759), which effectively reduced penalties in cases

involving crack cocaine, should be applied to his case. Section 3582(c)(2) provides, in

relevant part:

         [I]n the case of a defendant who has been sentenced to a term of imprisonment
         based on a sentencing range that has subsequently been lowered by the Sentencing
         Commission . . . , upon motion of the defendant . . . the court may reduce the term
         of imprisonment . . . if such a reduction is consistent with applicable policy
         statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2).

         As the text of the statute indicates, eligibility for a reduction under § 3582(c)(2)

requires, first, that the defendant’s sentence be “based on a sentencing range” lowered by

an amendment to the Sentencing Guidelines. Dennis’s counsel points out that “Dennis

was sentenced as a career offender,” so that “his offense level and Guidelines range were



                                                4
calculated based on the application of U.S.S.G. § 4B1.1, not § 2D1.1.” Dennis Br. 9.1

The Government agrees. Indeed, in United States v. Mateo we held that a career-

offender defendant’s base offense level is “determined based on the alternative career

offender offense level as stipulated by § 4B1.1,” even where “the crack cocaine

amendment ordinarily would have served to lower [the defendant’s] base offense level.”

560 F.3d 152, 154 (3d Cir. 2009). Even though a defendant’s base offense level may be

reduced by an amendment to the Sentencing Guidelines, “[t]o be entitled to a reduction of

sentence, a defendant’s sentencing range must have been lowered by recalculation based

on the amended base offense level.” Id.

       A career offender’s sentencing range is not lowered by application of the

Guidelines amendment. In Dennis’s case, application of a sentence reduction under

Amendment 750 does not lower the applicable sentencing range because Dennis’s

“sentencing range was determined based on the alternative career offender offense level

as stipulated by § 4B1.1” Id. Section 4B1.1, which the District Court properly consulted

in sentencing Dennis, contains a table listing offense statutory maximums and

corresponding offense levels. The provision requires that, when sentencing a defendant

whose offense carries a given statutory maximum, if the offense level corresponding to

the statutory maximum listed in the table is greater than the one calculated for the

defendant at sentencing, the greater offense level listed in the § 4B1.1(b) table should be

applied. Here, the Presentence Investigation Report concluded that Dennis’s offense


1
 U.S.S.G. § 2D1.1 lists penalties for drug offenses. Amendment 750 (and Amendment
759) applies to § 2D1.1.
                                             5
carried a maximum penalty of 20 years. See 21 U.S.C. § 841(b)(1)(C). The offense level

corresponding to a 20-year maximum sentence in the § 4B1.1(b) table is 32, which is the

same offense level calculated by the sentencing court — so that Dennis’s career-offender

status did not alter his offense level.

       In his supplemental motion for a sentence reduction pursuant to § 3582(c)(2)

before the District Court, Dennis argued that because “the offense level calculated

pursuant to U.S.S.G. § 2D1.1 was higher” than the offense level listed in the § 4B1.1(b)

table, the sentencing court used the § 2D1.1 offense level to determine Dennis’s sentence.

This is inaccurate because, as explained above, the base offense level under § 2D1.1

(properly calculated before the reduction for acceptance of responsibility) was identical

to that listed in the § 4B1.1(b) table — 32. The base offense level assigned to Dennis is

“based on” the career-offender provision and not § 2D1.1; the career-offender provision

controls the offense-level calculation.

       We recently considered whether a defendant sentenced as a career offender under

§ 4B1.1, who then receives a downward departure under § 4A1.3(b) because the career

offender provision is inadequately applied to him, may take advantage of amendments to

the Guidelines under § 3582(c)(2). See United States v. Flemming, No. 12-1118, 2013

WL 3779977 (3d Cir. July 22, 2013). In Flemming, we determined that “the ‘applicable

guideline range’” for a career-offender defendant who received a downward departure

under § 4A1.3 “is the range calculated pursuant to the career offender designation of

§ 4B1.1., and not the range calculated after applying any departure or variance.” Id. at *3

(emphasis added). In that case the parties agreed that Flemming’s sentence was, indeed,

                                             6
“based on” a sentencing range lowered by the Guidelines, since the § 4A1.3 departure

was applied because the § 4B1.1 career-offender designation was found to overstate

Flemming’s criminal history. That is, “the proper Guidelines range was calculated by

returning to the range based on the crack-cocaine offense levels.” Id. at *1 (emphasis

added). Thus the Flemming analysis does not apply, but even if it did, it would not make

Dennis’s claim arguably meritorious, since we concluded in Flemming that defendants

who received the § 4A1.3 departure are nevertheless not entitled to § 3582(c)(2) relief.

       Dennis’s sentence, as explained above, was calculated based on the career-

offender provision — not based on “a sentencing range that has subsequently been

lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Accordingly, he is not

eligible for a sentence reduction pursuant to § 3582(c)(2). We hold that there are no

issues of arguable merit to be appealed in this matter.

                                            IV.

       For these reasons, we will affirm the District Court’s denial of Dennis’s motion for

a reduction of sentence and grant counsel’s motion to withdraw.




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