                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                      No. 10-3274
                                    ______________

                            UNITED STATES OF AMERICA

                                            v.

                              DAVID GRIFFIN OLDHAM,

                                                               Appellant
                                    ______________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                            (D.C. Crim. No. 1-09-00382-001)
                     Honorable William W. Caldwell, 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 David G. Oldham’s appeal from a

judgment of conviction and sentence entered on July 22, 2010, on the basis of his plea of

guilty to all three counts of an indictment charging him with theft of firearms from a
federal licensed firearms dealer’s business inventory that had been shipped or transported

in interstate or foreign commerce in violation of 18 U.S.C. § 922(u) (Count I), possession

of stolen firearms that had been transported in interstate or foreign commerce in violation

of 18 U.S.C. § 922(j) (Count II), and transporting and shipping stolen firearms in

interstate commerce in violation of 18 U.S.C. § 922(i) (Count III). The District Court

determined that Oldham’s criminal history category was VI and his total offense level

was 27, a combination that yielded a sentencing guidelines custodial range of 130 to 162

months. The Court, however, though rejecting Oldham’s request for a departure, granted

him a variance and imposed a custodial sentence of 120 months, divided between 110

months on Count I and five months each on Counts II and III, all sentences to be

consecutive. In addition, the Court ordered that Oldham serve three concurrent terms of

supervised release of three years each following his release from imprisonment. It also

imposed a special assessment of $100 and ordered that he pay restitution of $7,817.48,

though it did not impose a fine.

       We appointed Ari D. Weitzman under the Criminal Justice Act to represent

Oldham on this appeal, continuing an appointment that the District Court made.

Weitzman has filed a petition pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396 (1967), and 3d Cir. L.A.R. 109.2(a) (2008) seeking permission to withdraw as

Oldham’s attorney. In addition, he has filed a brief on the merits of the case setting forth

possible arguments that could be advanced on behalf of Oldham but concluding “that

there are no non-frivolous issues upon which Appellant’s sentence may be vacated or

reduced.” Appellant’s br. at 24.

                                             2
        Weitzman sent a copy of the petition and brief to Oldham with a letter indicating

that Oldham could retain private counsel who could attempt to withdraw or supplement

Weitzman’s brief and that Oldham could respond to Weitzman’s brief “and raise any

additional issues that he believes are meritorious.” Following Weitzman’s letter to

Oldham, our clerk wrote Oldham and gave him the opportunity to file a pro se brief

within 30 days but Oldham has not done so.1

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

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review the

District Court’s interpretation of the sentencing guidelines on a plenary basis and its

findings of fact for clear error but review its refusal to depart downwards to determine if

the Court understood its power to depart. See United States v. Grier, 585 F.3d 138, 141-

42 (3d Cir. 2009); United States v. Givan, 320 F.3d 452, 463 (3d Cir. 2003). We review

the procedural and substantive reasonableness of the sentence for an abuse of discretion.

United States v. Merced, 603 F.3d 203, 213-14 (3d Cir. 2010).

        After our review of the appeal, exercising the appropriate standards of review, we

do not find any non-frivolous issues and thus we do not see any basis to vacate or modify

the sentence or to grant Oldham any relief. Accordingly, we grant Weitzman’s petition to

withdraw and will affirm the judgment of conviction and sentence entered on July 22,

2010.


1
  We note that the government in its statement of issues in its brief on this appeal
indicates that Oldham “has filed a pro se response to the [Anders] brief,” appellee’s br. at
2, but later indicates in its brief that Oldham “has not filed any informal brief in
response” to Weitzman’s br. Id. at 9-10. In fact, Oldham has not filed a brief.
                                             3
