United States of America v. James Leath

Honorable A. Wallace Tashima, Senior Judge of the*
United States Court of Appeals for the Ninth Circuit, sitting by
designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 09-1134
UNITED STATES OF AMERICA
v.
JAMES LEATH,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-93-cr-00386-002)
District Judge: Honorable Harvey Bartle, III
Submitted Under Third Circuit LAR 34.1(a)
February 10, 2010
Before: SLOVITER, ROTH, and TASHIMA, Circuit Judges*
(Filed: March 12, 2010)
OPINION

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SLOVITER, Circuit Judge.
James Leath, convicted by a jury in 1994 of conspiracy to distribute more than 50
grams of cocaine base (crack) in violation of 21 U.S.C. § 846, was sentenced to life
imprisonment. In 2008, Leath filed a motion to modify his sentence based on Sentencing
Guidelines Amendment 706 (effective November 1, 2007), which retroactively lowered
base offense levels for certain crack cocaine offenses. Leath appeals the District Court’s
denial of that motion.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo Leath’s
eligibility for a reduction of sentence. See United States v. Sanchez, 562 F.3d 275,
277-278 (3d Cir. 2009).
Leath’s counsel filed an Anders brief and Leath, as permitted in Anders cases, filed
a pro se brief. Under Anders v. California, if, after review of the district court record and
a conscientious investigation, counsel is convinced the appeal presents no issue of
arguable merit, counsel may properly ask to withdraw while filing a brief referring to
anything in the record that might arguably support the appeal. 386 U.S. 738, 741-42, 744
(1967). Appellate counsel must “satisfy the court that he or she has thoroughly scoured
the record in search of appealable issues” and “explain why the issues are frivolous.”
United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000). “The Court’s inquiry when
counsel submits an Anders brief is thus twofold [to determine]: (1) whether counsel
adequately fulfilled [Third Circuit Local Appellate Rule 109.2’s] requirements[,] and (2)

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whether an independent review of the record presents any nonfrivolous issues.” United
States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).
At Leath’s February 25, 1994 sentencing hearing, the District Court found Leath
responsible for distributing “more than” 84 kilograms of crack cocaine, resulting in a base
offense level of 42 under then-applicable Sentencing Guidelines. App. at 7. The District
Court then applied a nine-level enhancement: “one level for drug trafficking activity near
a school, two levels for possession of a gun during drug trafficking activity, two levels for
threatening to kill the mother of a witness against him, and four levels for his role in the
offense,” for a total offense level of 51 and criminal history category of IV. App. at 7.
The District Court sentenced Leath to life imprisonment under the Guidelines.
In 1996, Leath moved for a reduction of sentence based on Sentencing Guidelines
Amendment 505. Although Amendment 505 reduced Leath’s base offense level from 42
to 38 under § 2D1.1(c)(1), the nine-level enhancement yielded a total offense level of 47,
resulting in a Guidelines sentence of life imprisonment. The District Court denied the
motion.
In 2007, to address sentencing disparities between offenses for powder cocaine
and crack cocaine, Sentencing Guidelines Amendment 706 reduced by two levels the base
offense levels for certain crack cocaine offenses. See U.S.S.G. § 2D1.1(c), App. C,
Amend. 706 (2007). Based on this amendment, Leath sought modification of his
sentence under 18 U.S.C. § 3582(c)(2), which provides:

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The court may not modify a term of imprisonment once it has
been imposed except 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),
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.
18 U.S.C. § 3582(c)(2) (emphasis added). The District Court denied relief because
Leath’s offense involved 84 kilograms of crack cocaine, a quantity unaffected by
Amendment 706. The District Court held that Leath’s term of imprisonment was not
based on a sentencing range lowered by the Sentencing Commission.
Although Leath’s counsel recognizes that Leath is ineligible for relief under 18
U.S.C. § 3582(c)(2), he has nonetheless made the admirable effort to consider every
possible approach. First, counsel argues that “sentencing range,” as used in § 3582(c)(2),
refers “not to the span of months prescribed for any single defendant, but rather to the
spectrum of ranges yielded by application of a guideline to all defendants.” Appellant’s
Br. at 15. However, counsel correctly notes that this interpretation is foreclosed by the
definition of “Guideline Range” in Sentencing Guidelines. See U.S.S.G. Ch. 5, Pt. A,
Commentary n.1. Second, counsel argues that “district courts need not defer to the
Commission’s identification of the 4.5-kilogram limit.” Appellant’s Br. at 17. However,
counsel concedes this position is not supported by authority. Third, counsel argues that

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“the Commission’s adoption of the 4.5-kilogram limitation is arbitrary and thus violates
the Commission’s enabling legislation.” Appellant’s Br. at 18-19. However, counsel
concedes that § 3582(c)(2) is not the vehicle to challenge the Commission’s sentencing
determinations. Fourth, counsel argues that, under Apprendi v. New Jersey, 530 U.S. 466
(2000), the District Court’s drug quantity finding of 84 kilograms should have been
decided by the jury. However, counsel concedes that if Apprendi and its progeny are
declared retroactive by the Supreme Court, then “it would be necessary for Mr. Leath to
seek relief via motion under 28 U.S.C. § 2255 and/or any other appropriate mechanism.”
Appellant’s Br. at 22.
Although we commend the Federal Defender’s Office for its efforts and creativity,
Leath is not entitled to relief for the reasons stated by his counsel. We will accept the
Anders brief, grant counsel’s motion to withdraw, deny Leath’s motion for appointment
of new counsel, and affirm the District Court’s order.
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