                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 09-4420


                           UNITED STATES OF AMERICA

                                            v.

                              KEVIN LAMARR BETHEA,

                                                   Appellant


                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. No. 3-03-cr-00089-001)
                    District Judge: Honorable Christopher C. Conner


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    July 16, 2010

  Before: FUENTES and VANASKIE, Circuit Judges, and DITTER,* District Judge.

                                (Filed: September 9, 2010)



                               OPINION OF THE COURT


DITTER, District Judge.




       *
       Honorable J. William Ditter, Jr., Senior United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
       This appeal arises from the District Court’s failure to grant a request for a further

reduction of sentence under Section 3582(c)(2) of the Sentencing Reform Act of 1984, 18

U.S.C. § 3582(c)(2). Appellant’s attorney has filed a motion to withdraw as counsel and

a brief in support of that motion pursuant to Anders v. California, 386 U.S. 738, 744

(1967). For the reasons that follow, we affirm the judgment of the District Court and

grant counsel’s motion to withdraw.

                                             I.

       Appellant Kevin Lamarr Bethea, pursuant to a written agreement, pled guilty to

distribution and possession with intent to distribute fifty grams or more of cocaine base.

This offense carries a maximum term of life imprisonment and a mandatory minimum

term of ten years imprisonment. 21 U.S.C. § 841(b)(1)(iii). Based upon Bethea’s

criminal history and his offense level, his sentencing range under the Sentencing

Guidelines was 121-151 months. The District Court imposed a 121 month sentence.

       Amendments to the Guidelines for cocaine base offenses passed after Bethea’s

original sentencing resulted in a reduction of his total offense level from 29 to 27 –

reducing his imprisonment range to 100-125 months. Bethea sought a reduction in his

sentence because it was now one month above the mandatory minimum. Bethea’s motion

was granted and his sentence reduced to 120 months. The statutorily required 120 month

mandatory minimum prevented the District Court from imposing any greater reduction.

       Bethea filed this appeal apparently seeking a further reduction in his sentence.

Following the filing of counsel’s Anders brief, Bethea was notified he could submit a pro

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se brief. Bethea’s motion for an extension of time to do so was granted, but the time to

file has passed and he has not availed himself of this opportunity.

                                             II.

       Under Anders, counsel must “‘satisfy the court that he or she has thoroughly

scoured the record in search of appealable issues,’ and then ‘explain why the issues are

frivolous.’” United States v. Coleman, 575 F.3d 316, 319 (3d Cir. 2009) (quoting United

States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000). We must then consider: “(1) whether

counsel adequately fulfilled [Third Circuit Local Appellate Rule 109.2’s] requirements;

and (2) whether an independent review of the record presents any nonfrivolous issues.”

Id. (quoting United Sates v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).

       Counsel reports that he has reviewed the guilty plea and sentencing record, and the

motions for relief under § 3582(c)(2). Counsel also corresponded with Bethea about

other possible issues for appeal. According to counsel, Bethea’s concern is that possible

future legislation designed to equalize the penalties for cocaine and cocaine base offenses

might result in a further reduction in his sentence. Counsel has determined that this

appeal, including the challenged sentence, is wholly frivolous.

       After an independent review of the record, we find that counsel has fulfilled his

obligations under Anders by asserting and adequately briefing the only conceivable issue

Bethea sought to raise. Bethea was eligible for consideration under § 3582(c)(2) because

he was prosecuted for an offense involving cocaine base and the guideline range was

premised upon the nature and quantity of the substance. The District Court reduced his

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sentence by one month – the amount of time the guideline range exceeded the statutory

mandatory minimum sentence. Bethea is not eligible for any further reduction.

                                            III.

       For the above-stated reasons, we will grant counsel’s motion to withdraw and

affirm the sentence. We find further that this issue lacks legal merit and does not require

the filing of a petition for writ of certiorari with the Supreme Court. 3d Cir. L.A.R. 109.2

(2008).




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