United States of America v. Charles Cariola, a/k/a CHEW Charles Cariola

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-2578
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UNITED STATES OF AMERICA,
v.
CHARLES CARIOLA,
a/k/a CHEW
Charles Cariola,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 05-cr-182-3)
District Judge: Honorable A. Richard Caputo
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Submitted Under Third Circuit LAR 34.1(a)
February 6, 2009
Before: McKEE, JORDAN, and LOURIE*, Circuit Judges.
(Filed: February 11, 2009 )
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OPINION OF THE COURT
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*Honorable Alan D. Lourie, Circuit Judge of the United States Court of Appeals
for the Federal Circuit sitting by designation.

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LOURIE, Circuit Judge.
Charles Cariola seeks to appeal the District Court’s denial of his motion for a
reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). Cariola’s counsel has filed an
Anders brief in which he states that there are no non-frivolous grounds for appeal.
Cariola was invited to file a pro se brief stating his grounds for appeal but did not do so.
We agree with counsel that there are no non-frivolous grounds for appeal and will affirm.
I. Background
On February 21, 2007, Cariola entered a plea of guilty for conspiring to distribute
and possess with intent to distribute less than five grams of cocaine base. A pre-sentence
report concluded that his advisory guideline imprisonment range was 33 to 41 months in
prison. Cariola filed a sentencing memorandum, arguing that an amendment to the U.S.
Sentencing Guidelines Manual (“Sentencing Guidelines”) was anticipated in November
2007 to reduce the offense levels for crack cocaine offenses by two levels to address the
disparity under the Sentencing Guidelines between crack and powder forms of cocaine.
Cariola argued that he should receive a downward departure based on the powder-crack
cocaine disparity and the anticipated amendment to the Sentencing Guidelines.
On October 3, 2007, the District Court held a sentencing hearing. The Court noted
that the anticipated amendment had not yet passed but took into account Cariola’s “minor
role and the disparity between crack and powder” in its sentencing decision. (App. 58.)

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Cariola was then sentenced to a term of incarceration of 21 months, followed by a
three-year period of supervised release.
On November 1, 2007, the Sentencing Guidelines were amended as anticipated
and the offense levels applicable to certain cocaine base offenses were lowered by two
levels. See U.S. SENTENCING GUIDELINES MANUAL §§ 1B1.10, 2D1.1 (2008). On
January 17, 2008, Cariola filed a pro se petition seeking a reduction of sentence pursuant
to 18 U.S.C. § 3582(c)(2), and a supplemental motion was filed on Cariola's behalf by
appointed counsel on April 8, 2008. The government filed a response on April 10, 2008.
On May 5, 2008, the District Court issued an order denying Cariola’s motion for
sentence reduction. Then on May 13, 2008, the Court denied a request for
reconsideration. In explaining its denial of a reduction of sentence, the Court stated that
“[t]he disparity in the Sentencing Guidelines between powder and crack cocaine was
taken into account under 18 U.S.C. § 3553(a) at the time of sentence.” (App. 3.) This
appeal followed.
II. Discussion
Following entry by the District Court of its final order, Cariola’s counsel filed an
appellate brief in this court pursuant to Anders v. California, 386 U.S. 738 (1967), which
holds that if appointed counsel, after a conscientious examination of the case, finds an
appeal to be wholly frivolous, counsel should advise the court and request permission to
withdraw. Id. at 744. To determine the adequacy of counsel's brief, we take into account

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whether counsel “has thoroughly examined the record in search of appealable issues” and
explained “why the issues are frivolous.” United States v. Youla, 241 F.3d 296, 300 (3d
Cir. 2001). If we are satisfied with counsel’s brief, we may grant counsel’s request to
withdraw and deny the appeal. Anders, 386 U.S. at 744.
Here, counsel’s Anders brief indicates that he reviewed the record and determined
that the only ground for appeal would be to challenge the District Court’s discretionary
decision not to reduce Cariola’s sentence any further. Counsel concluded that such an
appeal was frivolous because in sentencing Cariola to 21 months in prison, the Court had
already lowered the sentence below the recommended sentencing range at the time of
Cariola’s sentencing and specifically stated that this decision took into account the
disparity between the Sentencing Guidelines for crack cocaine and powder cocaine. We
are satisfied that counsel’s Anders brief is adequate.
When an Anders brief appears adequate on its face, our independent examination
of the record is to be guided by the Anders brief itself. Youla, 241 F.3d at 301. We agree
with counsel that there is no non-frivolous basis to challenge the District Court’s denial of
Cariola’s motion for reduction of sentence. A district court’s discretion whether to
reduce a defendant’s sentence based upon a subsequent change in the Sentencing
Guidelines is set forth in § 3582(c)(2) itself, which provides that “the court may reduce
the term of imprisonment, after considering the factors set forth in § 3553(a) to the extent
that they are applicable, if such a reduction is consistent with applicable policy statements

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issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2) (emphasis added); see
also U.S. SENTENCING GUIDELINES MANUAL § 1B1.10 cmt. background (2008) (“The
authorization of such a discretionary reduction does not . . . entitle a defendant to a
reduced term of imprisonment as a matter of right.”); United States v. Fields, No.
07-3759, 2008 WL 5195309, at *1 (3d Cir. 2008) (stating that a district court has
discretion to reduce a sentence); United States v. Vaultier, 144 F.3d 756, 760 (11th Cir.
1998) (“The grant of authority to the district court to reduce a term of imprisonment is
unambiguously discretionary.”). Here, the District Court granted Cariola a four-level
variance at the time of sentencing, based in part upon the proposed amendments relating
to cocaine base offenses. Although the Court could have granted an additional two-level
reduction after the amendments passed, it chose not to do so. That decision not to give
Cariola an additional two-level reduction for the same disparity taken into account in the
initial sentencing decision was within the Court’s discretion. Thus, there is no
meritorious basis for challenging the District Court’s exercise of discretion.
III. Conclusion
For the reasons stated above, we will affirm the District Court and grant counsel’s
motion to withdraw.

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