NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 10-2102
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                                  CARL L. STEWART,
                                               Appellant
                                    _____________

                    On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                          District Court No. 2-89-cr-00122-001
                   District Judge: The Honorable William L. Standish
                                     _____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  January 28, 2011

                Before: McKee, Chief Judge, and SMITH, Circuit Judges
                           and STEARNS, District Judge*

                                (Filed: February 2, 2011)
                                _____________________

                                      OPINION
                                _____________________

SMITH, Circuit Judge.

      In December of 1989, Carl L. Stewart pleaded guilty to a drug conspiracy in

violation of 21 U.S.C. § 846, as well as six other drug and firearm offenses. At

*
 The Honorable Richard G. Stearns, United States District Judge for the United States
District Court of Massachusetts, sitting by designation.
sentencing, the United States District Court for the Western District of Pennsylvania

found that Stewart was a career offender under U.S.S.G. § 4B1.1. As a result, his offense

level and criminal history category were enhanced, yielding a sentencing guideline range

of 292 to 365 months. The District Court imposed a sentence of 328 months. Stewart

unsuccessfully challenged the District Court’s career offender finding on direct appeal.

In a § 2255 petition, Stewart asserted that he was entitled to relief in accordance with the

Supreme Court’s decision in Apprendi v. New Jersey, 

(2000). This petition

was also unsuccessful.

       Thereafter, the United States Sentencing Commission amended the Sentencing

Guidelines by revising part of the drug quantity table. U.S.S.G. App. C, Amend. 706

(Nov. 1, 2007). Amendment 706 generally reduced the base offense levels for crack

cocaine offenses by two levels. United States v. Mateo, 

, 154 (3d Cir.

2009). In 2008, the Sentencing Commission declared Amendment 706 to be retroactively

applicable. U.S.S.G. App. C, Amend. 713 (Supp. May 1, 2008). Based on Amendment

706, Stewart filed a motion for a reduction in sentence under 18 U.S.C. § 3582(c)(2).1

The District Court denied the motion, as the amendment did not change Stewart’s

sentencing range. The District Court explained that Stewarts’s guideline range was the


1
  Section 3582(c)(2) provides, in relevant part, that “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) . . . 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.” 18
U.S.C. § 3582(c)(2).

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result of his status as a career offender, not the quantity of the crack cocaine attributable

to him. This timely appeal followed.2

       Before us, Stewart’s counsel moved to withdraw pursuant to Anders v. California,

(1967). In United States v. Youla, 

, 300 (3d Cir. 2001), we

explained that an Anders brief must demonstrate that counsel has “thoroughly examined

the record in search of appealable issues,” and it must “explain why the issues are

frivolous.” Our inquiry is twofold: (1) whether counsel adequately fulfilled the

requirements of Anders; and (2) “whether an independent review of the record presents

any nonfrivolous issues.” 

States v. Marvin, 

, 780 (3d Cir.

2000)); see also 

(explaining that the court must proceed, “after a

full examination of all the proceedings, to decide whether the case is wholly frivolous”).

If review fails to reveal any nonfrivolous issues, the court “may grant counsel’s request to

withdraw and dismiss the appeal.” 

.

       We conclude that counsel has fulfilled his obligation under Anders.3 He ably set

forth the relevant factual and procedural history of the case and correctly explained why

challenging the District Court’s denial of Stewart’s § 3582(c)(2) motion is the only

possible issue for appeal. As counsel pointed out, Stewart’s challenge to the District


2
   The District Court exercised jurisdiction under 18 U.S.C. § 3231. We exercise
jurisdiction under 28 U.S.C. § 1291. We review a District Court’s denial of a motion for
relief under § 3582(c)(2) for an abuse of discretion. United States v. Sanchez, 

, 277 n.4 (3d Cir. 2010).
3
   Counsel appropriately served the Anders brief and the motion to withdraw upon
Stewart. See 3d Cir. L.A.R. 109.2(a). The Clerk advised Stewart that he was permitted
to file a pro se brief. Stewart did not submit any document to the Clerk.
                                              3
Court’s denial of his motion lacks merit in light of his career offender status and our

conclusion in Mateo that “Amendment 706 simply provides no benefit to career

(internal quotation marks and citation omitted).

Furthermore, our independent review of the sentencing transcript confirms that, unlike

the defendant in United States v. Flemming, 

, 259-60 (3d Cir. 2010), Stewart

did not receive a downward departure under U.S.S.G. § 4A1.3 from his career offender

guideline range, which would make him eligible for a sentence reduction under

§ 3582(c)(2). Accordingly, we agree with counsel that there are no nonfrivolous issues to

raise on appeal. For that reason, we will affirm the order of the District Court denying

Stewart’s § 3582(c)(2) motion for reduction of sentence and grant counsel’s motion to

withdraw. We certify that the issues presented in the appeal lack legal merit and thus do

not require the filing of a petition for writ of certiorari with the Supreme Court. 3d Cir.

L.A.R. 109.2(b).




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