NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-2300
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UNITED STATES OF AMERICA
v.
STEVEN ALLISON SMITH,
a/k/a “FACE”
a/k/a TERRY ELLIS
Steven Allison Smith,
Appellant
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Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 1-02-cr-00295-001)
District Judge: Honorable Christopher C. Conner
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Submitted Under Third Circuit LAR 34.1(a)
January 7, 2013
Before: RENDELL, FISHER and JORDAN, Circuit Judges
(Opinion Filed: January 14, 2013 )
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OPINION OF THE COURT
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RENDELL, Circuit Judge.
Pursuant to a binding plea agreement, Steven Allison Smith pleaded guilty to
possession with the intent to distribute an unspecified amount of cocaine base in violation
of 21 U.S.C. § 841(a). The District Court sentenced Smith to 144 months of
imprisonment—the term specified in the plea agreement. Smith filed a motion to have
his sentence reduced pursuant to 18 U.S.C. § 3582(c)(2), which the District Court denied.
Smith appeals this decision, and his counsel has moved to withdraw under Anders v.
California, 386 U.S. 738 (1967). For the reasons discussed below, we will grant
counsel’s motion to withdraw and affirm the District Court’s ruling.
I.
Because we write solely for the parties, we recount only those facts essential to
our disposition. On October 6, 2004, pursuant to a binding plea agreement, Smith
pleaded guilty to possession with intent to distribute an unspecified amount of crack
cocaine. The plea agreement provided for a sentence of 144 months’ imprisonment,
which the District Court imposed on February 2, 2005. Had Smith not entered into the
plea agreement, he would have faced a guideline range of 360 months to life if convicted
on all charges.
On January 23, 2012, Smith filed a pro se motion to reduce his sentence pursuant
to 18 U.S.C. § 3582(c)(2). Smith was appointed counsel and subsequently filed a new
motion contending that although he was sentenced according to a Rule 11(c)(1)(C)
agreement, he was still eligible for relief under Freeman v. United States, 131 S.Ct. 2685
(2011) (plurality) and Amendment 750 to the Sentencing Guidelines. The District Court
agreed that Smith was eligible for consideration of a sentence reduction under Freeman
but denied Smith’s request, finding that the 18 U.S.C. § 3553(a) factors did not weigh in
favor of reducing his sentence. In a thorough and well-reasoned opinion, the Court
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repeatedly stressed the seriousness of Smith’s conduct and that he benefited “significantly
from the binding plea agreement.” In reaching this conclusion, the District Court
considered facts that were not stipulated to in the plea agreement. Smith contends that
this was an abuse of discretion and appeals the District Court’s decision. His counsel has
moved to withdraw.
II.
Counsel may move to withdraw from representation if, after a thorough
examination of the District Court record, he 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.”). To evaluate an
Anders motion to withdraw, this Court analyzes: (1) whether counsel has thoroughly
examined the record for appealable issues and has explained in a brief why any such
issues are frivolous; and (2) whether an independent review of the record presents any
non-frivolous issues. United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). In
conducting an independent review of the record, the Court confines its review to those
issues and “those portions of the record identified by an adequate Anders brief” and “to
those issues raised in Appellant’s pro se brief.” Id. at 301. If this analysis demonstrates
that the identified issues are frivolous then the Court must “grant counsel’s Anders
motion, and dispose of the appeal without appointing new counsel.” 3d Cir. L.A.R.
109.2(a).
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We are satisfied that counsel has searched the record, identified potentially
appealable issues, and adequately explained why those issues are frivolous. In addition,
our own review of the record, including a review of Smith’s pro se brief, confirms that
the District Court appropriately balanced the 18 U.S.C. § 3553(a) factors in denying
Smith’s request for a sentence reduction. As the District Court succinctly stated, “Given
the serious nature of the offense, Smith’s significant and undeterred criminal conduct and
the substantial benefit he received from the binding plea agreement…a reduction in
Smith’s sentence is unwarranted.” Moreover, there is no merit to Smith’s contention that
the District Court erred in considering factors included in the Pre-sentence Report but
that we were not stipulated to in the plea agreement. Freeman explicitly states that in
evaluating whether a sentence should be reduced, the District Court should consider the
18 U.S.C. § 3553(a) factors and may consider whether the government made significant
concessions in the agreement. See, e.g. 131 S.Ct. at 2694 (plurality); id. at 2699 & n.6
(Sotomayor, J., concurring in the judgment). Accordingly, we find no appealable issue of
merit.
III.
For the foregoing reasons, we will grant counsel’s motion to withdraw and affirm
the District Court’s denial of a sentence reduction.
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