United States v. Bruce Low, Jr. ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-2841
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UNITED STATES OF AMERICA
v.
BRUCE GORDON LOW, JR.,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Crim. No. 06-cr-00791-001)
District Judge: Honorable Joseph H. Rodriguez
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Submitted Under Third Circuit LAR 34.1(a)
March 21, 2013
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Before: FUENTES, CHAGARES and BARRY, Circuit Judges
(Opinion Filed: April 23, 2013)
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OPINION
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BARRY, Circuit Judge
Appellant Bruce Gordon Low, Jr. was sentenced to 120 months‟ imprisonment
following our remand for resentencing. He appeals. Counsel has filed a motion to
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withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that there are no nonfrivolous issues for appeal. We will affirm and grant
counsel‟s motion to withdraw.
I.
Low was charged in a two-count information with unlawful possession with intent
to distribute 50 grams of crack cocaine (Count I), and possession of a firearm after having
been convicted of a felony (Count II). On September 28, 2006, he pled guilty to both
counts.
Over the course of the next two years, Low was represented by four separate
attorneys before proceeding pro se at his sentencing hearing on October 21, 2008.1 The
District Court sentenced Low to a term of imprisonment of 151 months on the first count
and 120 months on the second count to run concurrently. On appeal, we held that the
District Court had violated Low‟s Sixth Amendment right to counsel because “it forced
him to proceed pro se without providing an adequate Faretta/Welty colloquy.” United
States v. Low, 401 F. App‟x 664, 668 (3d Cir. 2010). We remanded for resentencing.
For Low‟s resentencing, the probation office revised its presentence report and
calculated his total offense level to be 31, which represented an adjusted offense level of
34 less 3 points for acceptance of responsibility, and his criminal history category to be a
1
The District Court did assign his fourth attorney, John F. Renner, Esq., to act as standby
counsel. The same attorney represented him at his second sentencing hearing and
currently represents him on appeal.
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III. The result was a sentencing guideline range of 135 to 168 months.
At his resentencing, Low, represented by Mr. Renner, asked the District Court to
vary downward, based principally upon his extensive post-conviction rehabilitation.2 The
District Court agreed, granting a 15-month downward variance and sentencing Low to a
term of imprisonment of 120 months on each count to be served concurrently. This
appeal followed.
II.3
Under Anders, if court-appointed appellate counsel determines there are no
nonfrivolous issues for appeal, he or she may seek to withdraw from representing an
indigent criminal defendant. United States v. Marvin, 211 F.3d 778, 779 (3d Cir. 2000).
Our review is plenary over whether there are any nonfrivolous issues for appeal. See
Simon v. Gov’t of the Virgin Islands, 679 F.3d 109, 114 (3d Cir. 2012) (citing Penson v.
Ohio, 488 U.S. 75, 80 (1988)). We must consider: “1) whether counsel adequately
fulfilled the requirements of Third Circuit Local Appellate Rule 109.2(a), and 2) whether
an independent review of the record presents any nonfrivolous issues.” Id. at 114.
To satisfy the first step, counsel must conclude that there are no nonfrivolous
issues for appeal after reviewing the record, advise us of his or her conclusions, and
2
In addition, Low asked the District Court to downward depart to a lower criminal
history category and to vary from the 18:1 crack/powder ratio established by the Fair
Sentencing Act of 2010 (“FSA”). The District Court denied Low‟s requests, and Low
does not appeal the denials.
3
The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. We exercise
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
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request permission to withdraw. United States v. Youla, 241 F.3d 296, 299-300 (3d Cir.
2001). Moreover, counsel must submit a “brief referring to anything in the record that
might arguably support the appeal,” and explain why the issues appellant wishes to raise
on appeal are frivolous. Anders, 386 U.S. at 744; see Marvin, 211 F.3d at 780-81.
“[W]hat is required is a determination that the appeal lacks any basis in law or fact.”
McCoy v. Court of Appeals of Wis., 486 U.S. 429, 438 n.10 (1988); see Youla, 241 F.3d at
300-01.
At the second step, we conduct an independent review of the record to assess
whether it presents any nonfrivolous issues. See Youla, 241 F.3d at 300. “Where the
Anders brief initially appears adequate on its face, the proper course is for the appellate
court to be guided in reviewing the record by the Anders brief itself.” Id. at 301 (internal
quotation marks and citation omitted). However, “„in those cases in which frivolousness
is patent,‟ we will not appoint new counsel even if an Anders brief is insufficient to
discharge current counsel‟s obligations to his or her client and this court.” United States v.
Coleman, 575 F.3d 316, 321 (3d Cir. 2009) (quoting Marvin, 211 F.3d at 781). We also,
of course, consider an appellant‟s pro se filings. If we determine that the appeal is
without merit, we must grant appellate counsel‟s motion to withdraw and dispose of the
appeal without appointing new counsel.
Low‟s counsel contends that there are no nonfrivolous issues for review on appeal.
However, he fails to address the issues raised by Low in his pro se brief, which gives us
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some pause as to whether counsel has satisfied his obligation to conduct a “conscientious
examination” of the record. Anders, 386 U.S. at 744. Thus, we must decide whether
Low‟s appeal is patently frivolous despite the Anders brief that has been submitted. See
Marvin, 211 F.3d at 781 (finding Anders brief deficient in part because counsel failed to
address whether client‟s pro se arguments lacked merit).
The arguments Low raises in his pro se brief are plainly without merit. First, Low
contends that the District Court violated the prohibition against ex post facto laws when it
employed the 2010 Sentencing Guidelines Manual and Supplement. Pursuant to the FSA,
the 2010 Supplement eliminated the two-level offense level reduction for which Low had
previously qualified under the 2008 Manual.4 Generally, a district court must use the
Guidelines Manual and its amendments in effect on the date of sentencing, unless the
court determines that such use would violate the ex post facto clause of the Constitution.
U.S. Sentencing Guidelines Manual § 1B1.11; see also United States v. Larkin, 629 F.3d
177, 193 (3d Cir. 2010) (“Where an amendment to a section of the sentencing guidelines
occurs following the convicted offense conduct and the amendment results in harsher
penalties than were in effect at the time of the conduct, the ex post facto clause . . .
require[s] the District Court to apply the sentencing guidelines in effect on the date that
the offense of conviction was committed.”).
4
The two-level reduction was generally applicable in cases in which the drug offense
involved crack and one or more controlled substances. U.S. Sentencing Guidelines
Manual § 2D1.1, app. n.10(D)(i) (2008). Thus, in Low‟s case his base offense level for
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Under both the 2008 and 2010 guidelines, Low‟s base offense level was calculated
to be 32 pursuant to the guideline for drug offenses. While the 2008 Manual included a
two-level reduction for drug offenses involving crack cocaine as well as other controlled
substances, it also had a higher marijuana conversion for crack cocaine. The 2010
Supplement lowered the marijuana conversion for crack cocaine and eliminated the two-
level reduction, but after completing all appropriate drug conversions and adding the drug
quantities, Low‟s base offense level remained at 32. See U.S. Sentencing Guidelines
Supp. 1-26 (effective Nov. 1, 2010). Because application of the 2010 Supplement did not
result in a harsher penalty, no ex post facto concerns are present in this case.5
Second, Low argues that the elimination of the two-level reduction was a
substantive amendment to the guidelines, and should not have had retroactive application
at his re-sentencing. In United States v. Marmolejos, we recognized “the established
principle that a post-sentencing amendment to a sentencing guideline or its comments
the quantity of combined drugs under the 2008 Manual was 34, but it was reduced to 32
pursuant to the two-level reduction.
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Low also maintains that the District Court should have treated the “one-book rule” as
advisory and should have applied both the two-level reduction from the 2008 guidelines
as well as the lower marijuana conversion from the 2010 supplement because otherwise
the end result of his guideline calculation remaining the same before and after the
enactment of the FSA “is fundamentally unfair.” Low‟s Brief 5. Under the guidelines, a
district court must apply the “Guidelines Manual in effect on a particular date . . . in its
entirety.” U.S. Sentencing Guidelines Manual § 1B1.11(b)(2) (emphasis added); see also
United States v. Saferstein, 673 F.3d 237, 243 (3d Cir. 2012). Thus, contrary to Low‟s
contention, the District Court could not apply provisions of the 2008 guidelines in
conjunction with the 2010 Supplement to the guidelines, but had to apply the entire
guidelines manual in effect at the time of Low‟s resentencing. In this case, as there were
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should be given effect if it „clarifies‟ the guideline or comment in place at the time of
sentencing,” while also noting that if an “amendment effects a substantive change in the
law, the defendant does not reap the benefit of the new provision.” 140 F.3d 488, 490 (3d
Cir. 1998) (emphasis added). Therefore, if a post-sentencing amendment “clarifies” a
guideline, the remedy would be a remand to give the district court an opportunity to
consider the amendment. Here, the 2010 Supplement, which eliminated the two-point
reduction, went into effect before Low‟s resentencing and the District Court considered
the elimination as part of Low‟s policy argument against the 18:1 crack/powder ratio.
Thus, there simply is no post-sentencing amendment for us to consider, much less
whether to apply it retroactively to Low‟s new sentence on appeal.
Lastly, Low argues that the District Court never acknowledged the advisory role of
the guidelines post-Booker, and treated the “one-book rule” as mandatory. See United
States v. Booker, 543 U.S. 220 (2005). As previously discussed, the District Court was
required to apply the 2010 Guidelines Manual in its entirety, so long as there were no ex
post facto concerns. Additionally, the District Court appropriately followed the dictates
of Booker and the sentencing procedures outlined us in resentencing Low. Specifically,
the District Court correctly calculated Low‟s applicable guidelines range, noted the
mandatory minimum for the drug offense, ruled upon all motions for departure, and
„“after giving both parties an opportunity to argue for whatever sentence they deem[ed]
no ex post facto concerns, the 2010 Guidelines Manual and Supplement that was in effect
at Low‟s resentencing, was properly applied in its entirety.
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appropriate,‟ the court . . . „exercise[d] its discretion‟ through „meaningful consideration
[of] the § 3553(a) factors‟ before deciding on a sentence.” United States v. Merced, 603
F.3d 203, 215 (3d Cir. 2010) (quoting Gall v. United States, 552 U.S. 38, 49 (2007);
United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006)). Furthermore, the District
Court exercised its discretion in varying 15 months below the applicable guidelines range
and selected a sentence that “falls within the broad range of possible sentences that can be
considered reasonable in light of the § 3553(a) factors.” United States v. Wise, 515 F.3d
207, 218 (3d Cir. 2008). Accordingly, a review of the record demonstrates there are no
nonfrivolous issues with regard to the procedural or substantive reasonableness of Low‟s
new sentence.
IV.
For the foregoing reasons, we will affirm the judgment of sentence and grant
counsel‟s motion to withdraw. We also find, pursuant to Third Circuit L.A.R. 109.2(b),
that the issues presented in this appeal lack legal merit for the purposes of counsel filing a
petition for a writ of certiorari in the Supreme Court of the United States.
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