2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2011/1555NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______________ No. 10

- 3681

______________ UNITED STATES OF AMERICA

v. C ASSIUS ALLEN HOLLINS, a/k/a Casius Hollins, Cassius Hollins, “Cash” Cassius Allen Hollins, Appellant

______________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. C rim . No. 1

- 09

- 00 393

- 001 ) Honorable Yvette Kane , District Judge

______________ Submitted under Third Circuit LAR 34.1(a) March 2 5, 2011 BEFORE: FUENTES , SMITH , and GREENBERG, Circuit Judges (Filed: March 31, 201 1 )

______________ OPINION OF THE COURT

______________ GREENBERG, Circuit Judge

. This matter comes on before this Court on Cassius Allen Hollins’ appeal f rom a judgment of conviction a nd sentence entered on August 26 , 2010, in the District Court2 following his plea of guilty to an information charging that on or about October 20, 2009, to October 21, 2009, Hollins distributed, dispensed, and possessed a mixt ure and substance containing a detectable amount of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). The prosecutor filed the information pursuant to a plea agreement providing for the dismissal of a two

- count indictment that previously had charged Hollins with distribution and possession with intent to distribute 5 grams or more of cocaine base on October 20, 2009, and October 21, 2009, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The District Court imposed a 70

- month custod ial sentence on the conviction o n the information to be followed by a three

- year term of supervised release. It also imposed a $100 special assessment and a $1000 fine. Continuing an appointment that the District Court had made, we appointed L. Rex Bic kley to represent Hollins on this appeal. Bickley has filed a motion pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396 (1967), to withdraw as Hollins’ counsel based on his determination “that an appeal of sentence in this matter would be frivo lous and meritless.” He served a copy of the motion on Hollins following which our clerk sent Hollins a letter indicating that he could file a brief within 30 days explaining why his conviction and/or sentence should be overturned. Hollins, however, has not filed a pro se brief. Bickley has filed a brief pursuant to Anders raising one issue which he indicates is not meritorious. The issue, which Bickley acknowledges he did not raise in the District Court, is that Hollins’ criminal history category was c alculated incorrectly because he was given three criminal history points for each of two state court convictions even3 though he was sentenced for the two offenses on th e same day, December 12, 2005. The argument goes that inasmuch as the sentences were im posed on the same day they should have been calculated as a single sentence for criminal history purposes , a treatment which would have reduced his criminal history category from V to IV and yielded a lower sentencing range. The District Court had jurisdi ction under 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1 291 and 18 U.S.C. § 3742(a). Inasmuch as the only issue Hollins raises on this appeal is a legal issue involving the interpretation of the sentencing guidelines w e are exercising ple nary review. See United States v. Givan , 320 F.3d 452,
46 3 (3d Cir. 2003). The material facts are not in dispute. As the presentence report sets forth , on November 16, 2004, Hollins was arrested on a charge of receiving stolen property , and on March 3, 2005, he was arrested for delivery of cocaine. Inasmuch as he was sentenced on both charges on the same day, December 12, 2005, t he sentences might have been treated as a single sentence for criminal history purposes pursuant to U.S.S.G. § 4A1.2(a)(2) . B ut that guidelines section precluded that treatment as it provides that if “the d efendant has multiple prior sentences, determine whether those sentences are counted separately or as a single sentence” but “[p]rior sentences always are counted separately i f the sentences were imposed for offenses that were separated by an intervening arrest.” The situation precluding treatment of the two sentences as a single sentence described in section 4A1.2(a)(2) is the precise situation here.4 We are satisfied that Bi ckl e y properly fulfilled his duties and, based on our review of the record, that there are no non

- frivolous issues that can be raised on Hollins’ behalf

. Moreover, the issue that Bickley has raised on behalf of Hollins is plainly not meritorious. For the foregoing reasons Bickley’s motion to be relieved as counsel for Hollins is granted and the judgment of conviction and sentence entered August 2 6 , 2010, will be affirmed

.