                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-11-2009

USA v. Charles Cariola
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2578




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"USA v. Charles Cariola" (2009). 2009 Decisions. Paper 1879.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1879


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                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 08-2578
                                    _____________

                          UNITED STATES OF AMERICA,

                                           v.

                                CHARLES CARIOLA,
                                   a/k/a CHEW

                                       Charles Cariola,
                                               Appellant
                                   _______________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                 (D.C. No. 05-cr-182-3)
                     District Judge: Honorable A. Richard Caputo
                                   _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  February 6, 2009

              Before: McKEE, JORDAN, and LOURIE*, Circuit Judges.

                             (Filed: February 11, 2009     )
                                   _______________

                              OPINION OF THE COURT
                                  _______________

_______________
        *Honorable Alan D. Lourie, Circuit Judge of the United States Court of Appeals
for the Federal Circuit sitting by designation.

                                           1
LOURIE, Circuit Judge.

       Charles Cariola seeks to appeal the District Court’s denial of his motion for a

reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). Cariola’s counsel has filed an

Anders brief in which he states that there are no non-frivolous grounds for appeal.

Cariola was invited to file a pro se brief stating his grounds for appeal but did not do so.

We agree with counsel that there are no non-frivolous grounds for appeal and will affirm.

I. Background

       On February 21, 2007, Cariola entered a plea of guilty for conspiring to distribute

and possess with intent to distribute less than five grams of cocaine base. A pre-sentence

report concluded that his advisory guideline imprisonment range was 33 to 41 months in

prison. Cariola filed a sentencing memorandum, arguing that an amendment to the U.S.

Sentencing Guidelines Manual (“Sentencing Guidelines”) was anticipated in November

2007 to reduce the offense levels for crack cocaine offenses by two levels to address the

disparity under the Sentencing Guidelines between crack and powder forms of cocaine.

Cariola argued that he should receive a downward departure based on the powder-crack

cocaine disparity and the anticipated amendment to the Sentencing Guidelines.

       On October 3, 2007, the District Court held a sentencing hearing. The Court noted

that the anticipated amendment had not yet passed but took into account Cariola’s “minor

role and the disparity between crack and powder” in its sentencing decision. (App. 58.)




                                              2
Cariola was then sentenced to a term of incarceration of 21 months, followed by a

three-year period of supervised release.

       On November 1, 2007, the Sentencing Guidelines were amended as anticipated

and the offense levels applicable to certain cocaine base offenses were lowered by two

levels. See U.S. S ENTENCING G UIDELINES M ANUAL §§ 1B1.10, 2D1.1 (2008). On

January 17, 2008, Cariola filed a pro se petition seeking a reduction of sentence pursuant

to 18 U.S.C. § 3582(c)(2), and a supplemental motion was filed on Cariola's behalf by

appointed counsel on April 8, 2008. The government filed a response on April 10, 2008.

       On May 5, 2008, the District Court issued an order denying Cariola’s motion for

sentence reduction. Then on May 13, 2008, the Court denied a request for

reconsideration. In explaining its denial of a reduction of sentence, the Court stated that

“[t]he disparity in the Sentencing Guidelines between powder and crack cocaine was

taken into account under 18 U.S.C. § 3553(a) at the time of sentence.” (App. 3.) This

appeal followed.

II.    Discussion

       Following entry by the District Court of its final order, Cariola’s counsel filed an

appellate brief in this court pursuant to Anders v. California, 386 U.S. 738 (1967), which

holds that if appointed counsel, after a conscientious examination of the case, finds an

appeal to be wholly frivolous, counsel should advise the court and request permission to

withdraw. Id. at 744. To determine the adequacy of counsel's brief, we take into account



                                             3
whether counsel “has thoroughly examined the record in search of appealable issues” and

explained “why the issues are frivolous.” United States v. Youla, 241 F.3d 296, 300 (3d

Cir. 2001). If we are satisfied with counsel’s brief, we may grant counsel’s request to

withdraw and deny the appeal. Anders, 386 U.S. at 744.

       Here, counsel’s Anders brief indicates that he reviewed the record and determined

that the only ground for appeal would be to challenge the District Court’s discretionary

decision not to reduce Cariola’s sentence any further. Counsel concluded that such an

appeal was frivolous because in sentencing Cariola to 21 months in prison, the Court had

already lowered the sentence below the recommended sentencing range at the time of

Cariola’s sentencing and specifically stated that this decision took into account the

disparity between the Sentencing Guidelines for crack cocaine and powder cocaine. We

are satisfied that counsel’s Anders brief is adequate.

       When an Anders brief appears adequate on its face, our independent examination

of the record is to be guided by the Anders brief itself. Youla, 241 F.3d at 301. We agree

with counsel that there is no non-frivolous basis to challenge the District Court’s denial of

Cariola’s motion for reduction of sentence. A district court’s discretion whether to

reduce a defendant’s sentence based upon a subsequent change in the Sentencing

Guidelines is set forth in § 3582(c)(2) itself, which provides that “the court may reduce

the term of imprisonment, after considering the factors set forth in § 3553(a) to the extent

that they are applicable, if such a reduction is consistent with applicable policy statements



                                              4
issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2) (emphasis added); see

also U.S. S ENTENCING G UIDELINES M ANUAL § 1B1.10 cmt. background (2008) (“The

authorization of such a discretionary reduction does not . . . entitle a defendant to a

reduced term of imprisonment as a matter of right.”); United States v. Fields, No.

07-3759, 2008 WL 5195309, at *1 (3d Cir. 2008) (stating that a district court has

discretion to reduce a sentence); United States v. Vaultier, 144 F.3d 756, 760 (11th Cir.

1998) (“The grant of authority to the district court to reduce a term of imprisonment is

unambiguously discretionary.”). Here, the District Court granted Cariola a four-level

variance at the time of sentencing, based in part upon the proposed amendments relating

to cocaine base offenses. Although the Court could have granted an additional two-level

reduction after the amendments passed, it chose not to do so. That decision not to give

Cariola an additional two-level reduction for the same disparity taken into account in the

initial sentencing decision was within the Court’s discretion. Thus, there is no

meritorious basis for challenging the District Court’s exercise of discretion.

III.   Conclusion

       For the reasons stated above, we will affirm the District Court and grant counsel’s

motion to withdraw.




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