Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-20-2008
USA v. Alamo
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3688
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Recommended Citation
"USA v. Alamo" (2008). 2008 Decisions. Paper 639.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/639
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 06-3688
_____________
UNITED STATES OF AMERICA
v.
ALEXANDER ALAMO,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
03-cr-008121
(Honorable James Knoll Gardner)
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 16, 2008
Before: McKEE and GARTH, Circuit Judges,
and IRENAS, Senior District Judge *
(Filed:August 20, 2008)
OPINION OF THE COURT
McKee, Circuit Judge.
*
The Honorable Joseph E. Irenas, Senior District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
Alexander Alamo’s attorney has filed a motion to withdraw as counsel, and
submitted a brief pursuant to Anders v. California, 386 U.S. 738 (1967). We deny his
motion because further action will be needed on behalf of Alamo. In accordance with the
then mandatory nature of the Guidelines, the district court sentenced Alamo to 276
months of incarceration, followed by 10 years of supervised release. On direct appeal,
we vacated his sentence and remanded to the district court in light of the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005). On remand, the
District Court reimposed the same sentence.
Third Circuit Local Appellate Rule 109.2(a) provides: “[w]here, upon review of
the district court record, trial counsel is persuaded that the appeal presents no issue of
even arguable merit, trial counsel may file a motion to withdraw and supporting brief
pursuant to Anders v. California . . .”. See also, United States v. Youla, 241 F.3d 296,
300 (3d Cir. 2001).
We agree that there are no nonfrivilous issues for appeal. However, after Alamo’s
counsel filed his Anders brief, the Supreme Court decided Kimbrough v. United States,
128 S. Ct. 558 (2007), wherein the Court clarified that “it would not be an abuse of
discretion for a district court to conclude when sentencing a particular defendant that the
crack/powder disparity yields a sentence greater than necessary to achieve § 3553(a)’s
purposes . . . .” 128 S. Ct. at 575. In addition, the United States Sentencing Commission
has since adopted Amendment 706 modifying the Guideline ranges applicable to crack
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cocaine offenses. Amendment 706 decreases the base offense levels for crack cocaine
offenses by two levels. See U.S.S.G. § 2D1.1.
18 U.S.C. § 3582(c)(2) provides:
in 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 pursuant to 28 U.S.C. 994(o), upon
motion of the defendant or the Director of the Bureau of Prisons, or on its
own motion, the court may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a) to the extent that they are
applicable, if such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.
Since the district court sentenced Alamo without the benefit of the Supreme
Court’s decision in Kimbrough, or the retroactive change in the Guidelines, we will
dismiss the appeal without prejudice to Alamo’s right to file an appropriate motion in the
district court pursuant to 18 U.S.C. § 3582(c)(2). We take no position regarding the
propriety of any sentence the district court may decide to impose.
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