2014 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_2014/675NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 13

- 1786

____________ UNITED STATES OF AMERICA

v. RUSS J. REGGIE ,

Appellant

____________ On Appeal from the United States Distric t Court for the Middle District of Pennsylvania (D.C. No. 12

- po - 00014 ) District Judge: Honorable Malachy E. Mannion

____________ Submitted Under Third Circuit LAR 34.1(a)

June 6, 2014 Before: HARDIMAN , SCIRICA , and ROTH , Circuit Judges

.

(Filed: July 8, 2014 )

____________ OPINION

____________ HARDIMAN, Circuit Judge. Russ Reggie appeals his judgment of sentence after pleading guilty to two petty offenses

. His attorney has moved to withdraw pursuant to Anders v. California , 386 U.S

.2

738 (19 67). For the re a sons that follow , we will grant co unsel’s motion to withdraw and affirm the judgment of the District Court

. I On November 1, 2011, a security officer at the Veterans Administration Medical Center in Wilkes

- Barre, Pennsylvania , stopped Regg ie after seeing him driv ing against the flow of traffic with his hazard lights flashing. When the officer approached, he smelled alcohol emanating from both Reggie and the car. The officer learned from a check of Reggie’s dr iving history that his license had been suspended, and a search of the vehicle found 23 cans of opened and unopened beer and three knives with blades longer than three inches. Reggie failed three field sobriety tests and was admitted to the hospital for alcohol intoxication. Reggie r eceived five violation notices as a result of the stop. On November 6, 2012, he pleaded guilty to operating a vehicle under the influence of alcoholic beverages, 38 C.F.R § 1.218(b)(15); and driving with a suspended license, 18 U.S.C. § 13, ref. 75
Pa. C on s . S tat . § 1543(a)

. Reggie faced a maximum six

- month prison term and a $5,000
fine

. However, a t sentencin g, counsel for both sides recommended probation, noting Reggie’s status as a n honorably discharged Vietnam veteran who later suffered combat

related i ssues . Reggie’s attorney also spoke of Reggie’s limited criminal record and the fact that Reggie was homeless and living in his vehicle at the time of the incident in question , having lost his trailer and suffered an injury due to hurricane

- related floodi ng in September 2011

.3

The District Court praised Reggie for his military service and complimented him on his efforts to get his life back on track. However, the District Court also observed that most of the other offenses on Reggie’s record involved alco hol and warned him about the dangers of drinking and driving

. The District Court then sentenced Reggie t o one year of probation, a $200 fine, a special assessment of $ 2 0, and a $50 processing fee

. R eggie filed a pro se notice of a ppeal on March 18, 2013. His c ounsel moved to withdraw pursuant to Anders

. Reggie has not filed a pro se brief. 1
II Under Anders we ask whether : ( 1) c ounsel has adequately fulfilled the requirements of Third Circuit Local Appellate Rule 109.2(a) and ( 2) an independent examinati on of the record reveals any nonfrivolous issues. United States v. Coleman , 575 F.3d 316, 319 (3d Cir. 2009) (citing United States v. Youla , 241 F.3d 296, 300 (3d Cir. 2001 ) )

. The first prong of the Anders test requires counsel to analyze the record, asc ertain that no nonfrivolous issues exist for review, and a sk permission to withdraw. Youla , 241 F.3d at 300. The motion to withdraw must be accompanied by a “brief referring to anything in the record that might arguably support the appeal.” Anders , 386 U.S . at 744. The brief must “satisfy the court tha t counsel has t horoughly examined the record in search of appealable issue s , and . . . explain why the issues ar e frivolous .” Youla , 241 F.3d at 300.

1 We have jurisdiction under 28 U.S.C. § 1291.4

Reggie’s counsel identifies three potential issues for ap peal: ( 1) the District Court’s jurisdiction to accept the guilty plea; ( 2) the guilty plea’s validity in light of controlling constitutional and statutory standards; and ( 3) the procedural and substantive reasonableness of the sentence. Counsel’s discussio n of the reasons why no appealable issue exists satisfies Anders ’s first prong. O ur independent review of the record also confirms counsel ’ s conclusion that there are no nonfrivolous issues for appeal, as explained below.
III The first potential issue inv olves the District Court’s jurisdiction over the case. Under 18 U.S.C. § 3231, d istrict c ourts have original jurisdiction over all offenses against the laws of the United States. Reggie was charged with and ple ade d guilty to operating a vehicle under the i nfluence of alcohol, in violation of 38 C.F.R. § 1.218(a)(7) and (b)(15) , a federal regulation , and driving with a suspended license, in violation of 75 Pa. C ons. S tat. § 1543, a state

- law crime punishable in federal court under the Assimilative Crimes
Act , 18 U.S.C. § 13. “Under the ACA, if conduct prohibited under state law occurs on federal land”

— such as a Veterans Administration facility

— “the state criminal law is assimilated into federal law so long as that conduct is not already made punishable by
any ‘enactment of Congress.’” United States v. Hall , 979 F.2d 320, 322 (3d Cir. 1992) (quoting 18 U.S.C. § 13). In this way, the ACA “ensures uniformity between criminal prohibitions applicable within the federal enclave and within the surrounding state .” Id

. Here, there is no argument that driving with a suspended license is punishable by an act of Congress. Consequently, federal jurisdiction was proper

.5

The second argument is that Reggie’s guilty plea was not valid. To be valid, a guilty plea must be know ing and voluntary, in accordance with th e standard s elucidated in Boykin v. Alabama , 395 U.S. 238 (1969), and Rule 11 of the Federal Rule s of Criminal Procedure. Boykin requires the trial judge to conduct an on

- the

- record colloquy with the defendant to ens ure he is aware of the important c onstitutional rights he waives by pleading guilty, including the Fifth Amendment privilege against self

- incrimination, the right to trial by jury, and the right to confront his accusers. 395 U.S. at 243. Rule 11 sets forth specific requirements for the colloquy a district court must conduct before accepting a guilty plea. The court must determine the factual basis for a plea, “inform the defendant of, and determine that the defendant understands” a list of rights he possess es, the nature of the crimes he is charged with , and potential consequences of pleading guilty, and ensure the plea is knowing and voluntary. Fed. R. Crim. P. 11. Here, our independent review of the plea colloquy confirms that it was routine in
every res pect, and there is no indication that Reggie’s plea was not knowing and voluntary. In addition, as his counsel note d , Reggie has not moved to withdraw the plea or indicated that he wishes to withdraw it. The District Court properly accepted the guilty plea

. The final issue the Anders brief raises is the reasonableness of Reggie’s sentence. As the District Court noted at the plea colloquy, Reggie ple ade d guilty to petty offenses not covered by the U.S. Sentencing Guideline; they carried a maximum of six mo nths in jail and a $5,000 fine. The Dis trict Court thoughtfully weighed Reggie’s record and personal history and imposed a sentence well below that

— a sentence that also took into6

consideration Reggie’s apparent struggles with alcohol in an effort to help h im improve his life. In addition, the $200 fine was mandatory under Pennsylvania law. The sentence

was plainly reasonable.

* * * Having independently reviewed the record, we find no meritorious issues for appeal. For the reasons above, we will affirm th e judgment of the District Court and grant counsel’s motion to withdraw.