United States v. Justin Dennis , 534 F. App'x 146 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-3872
_____________
UNITED STATES OF AMERICA
v.
JUSTIN DENNIS,
Appellant
_____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(No. 1-09-cr-00270-001)
District Judge: Hon. Sylvia H. Rambo
_____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 27, 2013
Before: FUENTES, FISHER, and CHAGARES, Circuit Judges.
(Filed: August 6, 2013)
____________
OPINION
____________
CHAGARES, Circuit Judge.
Defendant Justin Dennis appeals the District Court’s denial of his motion for a
reduction of sentence. His attorney seeks to withdraw as counsel pursuant to Anders v.
California, 386 U.S. 738 (1967). For the reasons that follow, we will grant the motion to
withdraw and affirm the denial of Dennis’s motion for a reduction of sentence.
I.
Dennis pleaded guilty in October 2009 to one count of distribution and possession
with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1). On
February 16, 2010, Dennis was sentenced to 140 months of imprisonment, to be followed
by a three-year period of supervised release. The District Court arrived at Dennis’s
sentence after assigning Dennis an advisory Sentencing Guidelines offense level of 28
and identifying him as a career offender. The District Court rejected defense counsel’s
argument at the sentencing hearing that the career-offender determination overstated
Dennis’s criminal history, reasoning that “this is a man who’s just determined that he’s
just bound to break the law.” Appendix (“App.”) 32.
The sentencing court calculated Dennis’s sentence in the following manner.
Based on the court’s finding that Dennis was responsible for between 150 and 500 grams
of crack cocaine, Dennis’s base offense level was determined to be 32. Dennis was
designated a “career offender,” a classification that did not increase his offense level, but
added one level to his criminal history category, making it a VI. See U.S. Sentencing
Guidelines § 4B1.1(b). Dennis also received a 3-point adjustment in offense level due to
his acceptance of responsibility by pleading guilty, resulting in an offense level of 29.
The court then applied a 1-point variance “based on the disparity between crack cocaine
and powder cocaine,” App. 42, making his final offense level 28. The court therefore
found that Dennis’s range under the advisory Sentencing Guidelines was between 140
2
and 175 months of imprisonment, and sentenced Dennis at the bottom of that range.
Dennis appealed, and this Court affirmed his sentence. United States v. Dennis, 412 F.
App’x 452 (3d Cir. 2011).
Dennis then filed a sentence reduction motion pro se under 18 U.S.C. § 3582(c).
The court appointed the Federal Public Defender to represent him, and appointed counsel
filed a brief to supplement Dennis’s pro se motion. On September 18, 2012, the District
Court denied the motion for a sentence reduction, holding that Dennis’s offense level was
based on his status as a career offender. Dennis appealed that decision, and his appointed
counsel now moves to withdraw pursuant to Anders v. California.
II.
Defense counsel may move to withdraw from representation if, after a thorough
examination of the District Court record, he or she is “persuaded that the appeal presents
no issue of even arguable merit.” 3d Cir. L.A.R. 109.2(a); see also Anders, 386 U.S. at
744 (“[I]f counsel finds his case to be wholly frivolous, after a conscientious examination
of it, he should so advise the court and request permission to withdraw.”). When
presented with an Anders motion to withdraw, we ask: (1) whether counsel has
thoroughly examined the record for appealable issues and explained why any such issues
are frivolous; and (2) whether an independent review of the record presents any
nonfrivolous issues. United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). If “the
Anders brief initially appears adequate on its face,” the second step of our inquiry is
“guided . . . by the Anders brief itself.” Id. at 301 (quotation marks omitted).
3
III.
Dennis’s appointed counsel seeks to withdraw from Dennis’s appeal of the denied
motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). The Anders brief
submitted by counsel provides a detailed account of the facts and procedural history of
the case, and identifies why a § 3582(c)(2) reduction is not warranted under these
circumstances. We are satisfied that counsel has examined the record for appealable
issues and has adequately explained why such issues are frivolous. We undertake our
own thorough examination of the record to determine whether any nonfrivolous issues
exist.
Dennis’s § 3582(c) motion argued that Amendment 750 to the Sentencing
Guidelines (amended by Amendment 759), which effectively reduced penalties in cases
involving crack cocaine, should be applied to his case. Section 3582(c)(2) provides, in
relevant part:
[I]n the case of a defendant who has been sentenced to a term of imprisonment
based on a sentencing range that has subsequently been lowered by the Sentencing
Commission . . . , upon motion of the defendant . . . the court may reduce the term
of imprisonment . . . if such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2).
As the text of the statute indicates, eligibility for a reduction under § 3582(c)(2)
requires, first, that the defendant’s sentence be “based on a sentencing range” lowered by
an amendment to the Sentencing Guidelines. Dennis’s counsel points out that “Dennis
was sentenced as a career offender,” so that “his offense level and Guidelines range were
4
calculated based on the application of U.S.S.G. § 4B1.1, not § 2D1.1.” Dennis Br. 9.1
The Government agrees. Indeed, in United States v. Mateo we held that a career-
offender defendant’s base offense level is “determined based on the alternative career
offender offense level as stipulated by § 4B1.1,” even where “the crack cocaine
amendment ordinarily would have served to lower [the defendant’s] base offense level.”
560 F.3d 152, 154 (3d Cir. 2009). Even though a defendant’s base offense level may be
reduced by an amendment to the Sentencing Guidelines, “[t]o be entitled to a reduction of
sentence, a defendant’s sentencing range must have been lowered by recalculation based
on the amended base offense level.” Id.A career offender’s sentencing range is not lowered by application of the
Guidelines amendment. In Dennis’s case, application of a sentence reduction under
Amendment 750 does not lower the applicable sentencing range because Dennis’s
“sentencing range was determined based on the alternative career offender offense level
as stipulated by § 4B1.1” Id. Section 4B1.1, which the District Court properly consulted
in sentencing Dennis, contains a table listing offense statutory maximums and
corresponding offense levels. The provision requires that, when sentencing a defendant
whose offense carries a given statutory maximum, if the offense level corresponding to
the statutory maximum listed in the table is greater than the one calculated for the
defendant at sentencing, the greater offense level listed in the § 4B1.1(b) table should be
applied. Here, the Presentence Investigation Report concluded that Dennis’s offense
1
U.S.S.G. § 2D1.1 lists penalties for drug offenses. Amendment 750 (and Amendment
759) applies to § 2D1.1.
5
carried a maximum penalty of 20 years. See 21 U.S.C. § 841(b)(1)(C). The offense level
corresponding to a 20-year maximum sentence in the § 4B1.1(b) table is 32, which is the
same offense level calculated by the sentencing court — so that Dennis’s career-offender
status did not alter his offense level.
In his supplemental motion for a sentence reduction pursuant to § 3582(c)(2)
before the District Court, Dennis argued that because “the offense level calculated
pursuant to U.S.S.G. § 2D1.1 was higher” than the offense level listed in the § 4B1.1(b)
table, the sentencing court used the § 2D1.1 offense level to determine Dennis’s sentence.
This is inaccurate because, as explained above, the base offense level under § 2D1.1
(properly calculated before the reduction for acceptance of responsibility) was identical
to that listed in the § 4B1.1(b) table — 32. The base offense level assigned to Dennis is
“based on” the career-offender provision and not § 2D1.1; the career-offender provision
controls the offense-level calculation.
We recently considered whether a defendant sentenced as a career offender under
§ 4B1.1, who then receives a downward departure under § 4A1.3(b) because the career
offender provision is inadequately applied to him, may take advantage of amendments to
the Guidelines under § 3582(c)(2). See United States v. Flemming, No. 12-1118, 2013
WL 3779977 (3d Cir. July 22, 2013). In Flemming, we determined that “the ‘applicable
guideline range’” for a career-offender defendant who received a downward departure
under § 4A1.3 “is the range calculated pursuant to the career offender designation of
§ 4B1.1., and not the range calculated after applying any departure or variance.” Id. at *3
(emphasis added). In that case the parties agreed that Flemming’s sentence was, indeed,
6
“based on” a sentencing range lowered by the Guidelines, since the § 4A1.3 departure
was applied because the § 4B1.1 career-offender designation was found to overstate
Flemming’s criminal history. That is, “the proper Guidelines range was calculated by
returning to the range based on the crack-cocaine offense levels.” Id. at *1 (emphasis
added). Thus the Flemming analysis does not apply, but even if it did, it would not make
Dennis’s claim arguably meritorious, since we concluded in Flemming that defendants
who received the § 4A1.3 departure are nevertheless not entitled to § 3582(c)(2) relief.
Dennis’s sentence, as explained above, was calculated based on the career-
offender provision — not based on “a sentencing range that has subsequently been
lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Accordingly, he is not
eligible for a sentence reduction pursuant to § 3582(c)(2). We hold that there are no
issues of arguable merit to be appealed in this matter.
IV.
For these reasons, we will affirm the District Court’s denial of Dennis’s motion for
a reduction of sentence and grant counsel’s motion to withdraw.
7