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w . v i l l a no v a . e du/thir dc ir c uit_2013/13981 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________ No. 12

- 1245

__________ UNITED STATES OF AMERICA

v. THOMAS PARKER, a/k/a Seagull
THOMAS PARKER,

Appellant

__________ On Appeal from the Unit ed States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 4

- 06

- cr - 00175

- 008 ) District Judge: The Honorable Christopher C. Conner Submitted Under Third Circuit L.A.R. 34.1(a)

December 10, 2012 BEFORE: GREENAWAY, Jr. , NYGAARD , and VAN ANTWERPEN , Circuit Judges
(Filed : January 11, 2013 )

__________ OPINION OF THE COURT

__________ NYGAARD, Circuit Judge2

Thomas Parker appeals the District Court’s denial of his motion to r educe his
sentence . Counsel for Parker has moved to withdraw and file d an Anders brief, asserting that there are no non

- frivolous issues for appeal. Anders v. California , 386 U.S. 738, 744 ( 1967). We will affirm the District Court’s order and grant counsel’s motion to withdraw. Parker pleaded guilty to one count of distr ibuting and possessing with intent to distribute in excess of 50 grams of cocaine base, pursua nt to 21 U.S.C. § § 841(a) (1) and 841(b)(1)(B)(iii) . The plea a greement stated, in a general manner, that the United States Sentencing Guidelines apply, an d that giving substantial assistance to the Government and accepting responsibility could result in offense

- level reductions. It did not, however, provide any details on how the sent ence would be calculated. The a greement required Parker to promptly raise any o bjections to the presentence r eport, and this specifically included any issues with sentencing c lassif i cations

. The presentence r eport gave Parker a base offense level of 34 under United States Sentencing Guideline s Section 2D 1.1(c)(3). He received a t hree

- level reduction for accept ing responsibility. Parker had 22 criminal history points, giving him a criminal history category of VI. T he presentence r eport also classified him as a career offender under section 4B1.1 because he was 33 years old, had c ommitted a drug felony, and had two prior felonies. This , too, gave Parker a base offense level of 34. The resulting sentencing range was 188 to 235 months. The presentence r eport explicitly noted that , in the absence of a plea agreement, a conviction on all counts in Parker’s indictment would have resulted in a maximum3

sentence of life. Moreover, t he r eport stated that, unde r the career offender provision of the Guidelines, his base level offense would have been 37 and , with a criminal history catego ry of VI, his sentencing range would have been 360 months to life. Parker did not file any objections, nor did he raise a ny at the sentencing h earing. The District Court sentenced Parker to 188 months of imprisonment. The District Court did not expli citly state whether it was deriving Parker’s base offense level from section 2D1.1 of the Guidelines, or from the career off ender provision . The District Court merely s tated that it was adopting the presentence r eport without change

. Post

- sentencing, P arker filed a motion to modify his sentence under 18 U.S.C. § 3582(c)(2) , in accord with Amendment 706 that lowered base offense levels for crack cocaine offenses. He argued that, under the retroactive amendment to the Guidelines, his base offense level w ould be 32, with a n additional three

- level reduction for accept ing responsibility. 1 The District Court denied the motion , ruling that it sentenced Parker as a career criminal and did not base the sentence on section 2D1.1

. Under Anders v. California , c ounsel can ask to withdraw from representing an indigent criminal defendant on appeal if there are no non

- frivolous issues to appeal. We exercise plenary review

. When counsel files a motion under Anders , we must determine first, whether counsel fulfille d Third Circuit LAR 109.2(a) ’ s requirements ; and second, whe ther our independent review reveals any non

- frivolous issues.

1 He also argued in a footnote that, in light of the November 1, 2011 retroactive amendment s to section 2D1.1 (Amendment 750), his base offense level should be reduced to 28, with an additional three

- level reduction for acceptance of responsibility.4

We judge counsel’s brief to be adequate. He raises the proper standard of review and he identifies and analyzes the only appealable issue in this case. T he District Court did not explicitly state that it was calculating the sentence based on the career offender provision of the Guidelines. Yet, Parker cannot produce any evidence that the District Court explicitly derived the base offense level from section 2D1.1 . Moreover, the District Court denied Parker’s motion because: the presentence

r eport classified him as a career offender; the r eport referenced the career offender sentence range that could have applied in the absence of a plea agreement without even mentioning the sentence that could be imposed under 2D1.1; the District Court accepted the presentence r eport without change; an d Parker did not object to the r eport or the career offender classification. W e conclude that it did not err by deciding that Parker was sentenced as a career offender . As such, Parker h as no basis to argue under the A mendments to the Guidelines that his sentence should be reduced . We also note that his sentence is at the bottom of the Guidelines ra nge . For these reasons , we agree with counsel that there are no non - fr ivolous issues for appeal in this case. Accordingly, we will affirm the District Court’s order denying Parker’s motion for a reduction of his sentence and grant counsel’s motion to w ithdraw. Counsel is also relieved of any obligation to file a petition for a writ of certiorari in the United States Supreme Court. See Third Circuit LAR 109.2 (b).