2008 Decisions

Opinions of the United

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Precedential or Non-Precedential: Non-Precedential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
 The Honorable Joseph E. Irenas, Senior District Judge for the United States District *

Court for the Eastern District of Pennsylvania, sitting by designation.

 NOT PRECEDENTIAL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.
2

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
3

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.