                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 12-1066
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                               FOREMAN SALMOND,

                                                    Appellant
                                    _____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                          (M.D. Pa. No. 1:09-CR-00377-001)
                     District Judge: Honorable Sylvia H. Rambo
                                   _____________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                November 16, 2012

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

                          (Opinion Filed: November 21, 2012)
                                   _____________

                              OPINION OF THE COURT
                                  _____________

FUENTES, Circuit Judge:

      Appellant, Foreman Salmond, pled guilty to one count of crack cocaine

distribution in violation of 21 U.S.C. § 841(a) and was sentenced to 120 months

imprisonment. On appeal, Salmond’s counsel has moved to withdraw his representation
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that Salmond’s appeal is

wholly frivolous. We will grant the motion to withdraw and affirm Salmond’s sentence.

                                            I.

      Because we write primarily for the parties, we set forth only those facts and

procedural history relevant to our conclusion. On or about March 27, 2007, Salmond

sold crack cocaine to a confidential informant. On January 11, 2011, Salmond entered a

guilty plea to a superseding information charging distribution of five grams or more of

crack cocaine in violation of 21 U.S.C. § 841(a). At presentence hearings, Salmond

presented evidence of a prior head trauma and expert testimony concerning the

continuing effects of this injury to support his request for downward departures pursuant

to U.S.S.G. § 5H1.3 (mental and emotional conditions), § 5H1.4 (physical condition,

including drug and alcohol dependence and abuse) and §5K2.13 (diminished capacity). It

was also determined that Salmond was a career offender and that the sentencing

guidelines range was 151 to 188 months.

      After statements by witnesses for both sides, the District Court denied Salmond’s

motions for downward departures but considered Salmond’s medical and mental

problems under a balancing of the 18 U.S.C. § 3553(a) factors. The District Court

concluded that the sentencing guidelines range of 155 to 180 months was excessive and

sentenced Salmond to a below guidelines sentence of 120 months. The District Court

imposed sentence and entered judgment on December 21, 2011. This appeal was timely

filed on January 5, 2012.




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                                             II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Under Anders, a

criminal defendant’s appeal may be dismissed on the merits and counsel for the

defendant may withdraw if, after a “conscientious” examination of the case, counsel finds

the case to be wholly frivolous. Anders, 386 U.S. at 744. “If the [appellate] panel agrees

that the appeal is without merit, it will grant counsel’s Anders motion, and dispose of the

appeal without appointing new counsel.” 3d Cir. L.A.R. 109.2(a). This Court conducts

a two-step analysis in evaluating an Anders motion to withdraw by considering, first,

whether counsel has sufficiently fulfilled our local appellate rule’s requirements by

examining the record for appealable issues and expressing why such issues may be

frivolous. United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Second, this Court

considers whether there are any non-frivolous issues resulting from an independent

review of the record. Id. When an Anders brief appears adequate on its face, we are

guided in our review of the record by the Anders brief itself. Id. at 301.

       Salmond’s counsel submits that he conscientiously examined the pleadings, trial

transcripts, and rulings of the District Court for potential issues worthy of appeal and has

found none. Counsel identifies that the only possible question for review is whether the

District Court properly conducted the sentencing process and properly exercised

discretion in denying Salmond’s requested departures from the sentencing guidelines to

have made the sentence procedurally and substantively reasonable. After carefully

reviewing the record, Salmond’s counsel concludes that the District Court properly


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conducted the necessary steps for sentencing because it correctly calculated the

sentencing guidelines in light of Salmond’s past offenses.

          Salmond’s counsel indicates that it is clear from the record that the District Court

recognized its authority to exercise discretion and to grant Salmond’s requests for

downward departures. The District Court properly decided to deny these requests based

on Salmond’s prior criminal history. Salmond’s counsel also concludes that the District

Court adequately considered the variance factors under 18 U.S.C. § 3553 and found that

while a downward departure was not appropriate, a sentence within the guidelines range

would be excessive and greater than necessary to meet sentencing purposes. As such, the

District Court sentenced Salmond to a below guidelines sentence of 120 months.

       We believe that counsel’s Anders brief is adequate, and, thus, we will be guided

by the brief itself in reviewing the record. Our independent review of the record reveals

that there are no non-frivolous appealable issues. We agree with Salmond’s counsel that

the District Court properly followed the necessary sentencing procedures and properly

exercised its discretion in determining a fair sentence. The District Court reviewed the

circumstances of this case, Salmond’s mental injuries, and related requests for downward

departures and it was within the District Court’s discretion to deny these requests. After

finding that these factors made the sentencing guidelines range of 155 to 180 months

excessive, the District Court concluded that Salmond was entitled to a below guidelines

sentence. Therefore, we find no issues emerging from the record that are worthy of

appeal.




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                                           III.

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

the judgment and sentence of the District Court.




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