NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________ No. 19

- 2122

_______________ UNITED STATES OF AMERICA

v. ERIC HARDING,

Appellant

_______________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 4:16

- cr - 00019

- 022 ) District Judge: Honorable Matthew W. Brann

_______________ Submitted Under Third Circuit L.A.R. 34.1(a)

O n January 30, 2020 Before: CHAGARES, RESTREPO, and BIBAS , Circuit Judges

(F i l e d : February 3, 2020 )

_______________ OPINION *

_______________ BIBAS, Circuit Judge

. Eric Harding pleaded guilty to conspiring to distribute heroin and waiv ed his right to appeal unless his sentence exceeded ten years in prison

. The District Court sentenced him to nine years

. Still, h e appealed pro se . H is court

- appointed counsel has filed an Anders

* T his disposition is not an opinion of the full Court and , under I.O.P. 5.7 , is not binding precedent.2

brief and moved to withdraw, arguing that any appeal would be frivolous. See 3d Cir. L.A.R. 109.2(a) (citing Anders v. California , 386 U.S. 738 (1967)). After reviewing the briefs and the record, we agree. So we will affirm Harding’s judgment of conviction and grant counsel’s motion to withdraw.

* * * * * The Anders brief shows that counsel thoroughly reviewed the record for arguabl y appealabl e issues and explained why each would be frivolous. So i t is “adequate on its face.” United States v. Youla , 241 F.3d 296, 30 1 (3d Cir. 2001). We must still review the rec ord ourselves , b ut the facially adequate brief guides us . Id. Our review confirms that each of the four issues identified in the Anders brief is frivolous. First, th ere is no question of jurisdiction . T he District Court had jurisdiction over this federal drug crime under 18 U.S.C. § 3231. Second, Harding’s guilty plea was knowing and volunta ry . See B rady v. United States , 397 U.S. 742, 748 (1970)

. After questioning and observing Harding, the District Court found him competent to plead. It s colloquy then tracked Federal Rule of Criminal Procedure 11(b) , which requires judges to warn defendants of the rights they will forfeit and the risks they will take by pleading guilty

. In doing so , the Court told Harding the statutory minimum and maximu m s entences that he faced

. See Fed. R. Crim. P. 11(b)(1)(H)

– (I). The Court also warned Harding that he was waiving his right to appeal if he received a sentence of ten years or less. T he Government then summarized the plea agreement and recited in detail t he facts that it would prove at trial

. Harding admitted the key facts , establishing a n3

adequate factual basis for his plea

. Both in his plea agreement and at his colloquy, Harding was represented by counsel and said he was satisfied with counsel’s performance

. The only wrinkle is that a later

- enacted statute lowere d the sentenc ing range for Harding’s crime . After Harding pleaded guilty but before he was sentenced , the First Step Act of 2018 went into effect. Pub. L. No. 115

- 391, 132 Stat. 5194. Bec ause Harding had received only probation for a prior state drug conviction, the Act provided that a recidivist

drug

- offender enhancement no longer applied to him. See id. § 401(a)(1), (2)(B), 132 Stat. at 5220

– 21 (codified at 21 U.S.C. §§ 802(57), 841(b)(1 )(B)) ; see also id. § 401(c), 132 Stat. at 5221 ( applying the Act’s changes retroactively “ if a sentence for the offense has not been imposed as of [the] date of enactment ”) . So the Act lowered his mandatory

- minimum prison sentence from ten to five years a nd his mandatory supervised

- release term from eight to four years. 21 U.S.C. § 841(b)(1)(B) (as amended )

. It also lowered his maximum prison sentence from life to forty years. Id

. But the Act d id not invalidate Harding’s guilty plea. A defendant’s plea need only be knowing, not prophetic. It “is not subject to later attack ” whe n the defendant is “ correctly advised

. . . with respect to the then existing law as to possible penalties ,” but later changes in the law lower the “penalt y for the crime in question [below what] was reasonably assumed at the time the plea was entered.” Brady , 397 U.S. at 757. Third, the appeal waiver is enforceable. The Court explained it to Harding at his plea colloquy , and he responded that he knew he wa s waiving his right to appeal. N othing in the record casts doubt on Harding’s knowing, voluntary decision to enter the plea agreement and accept its appeal waiver. So the waiver is valid

. See United State s v. Khattak , 2734

F.3d 557, 563 (3d Cir. 2001). Enforcing it would not work a miscarriage of justice. See i d

. And because his sentence fell below the waiver’s ten

- year ceiling, the waiver bars any challenge to his conviction or sentence

. Fourth, even if we could review Harding’s sentence, it was proced urally and substantively proper and not an abuse of discretion

. See United States v. Handerhan , 739 F.3d 114, 119 (3d Cir. 2014)

. T he Court properly computed the Guidelines range, considered Harding’s motion for a departure, weighed the statutory sentencin g factors, ruled on objections in line with the parties’ stipulation , and heard from counsel and Harding himself. And t he Court followed the procedures required by Federal Rule of Criminal Procedure 32. So the sentence was procedurally proper. See United S tates v. Gunter , 462 F.3d 237, 247 (3d Cir. 2006). The sentence was also substantively reasonable, reflecting Harding’s criminal history, the severity of the crime, and the other factors required by 18 U.S.C. § 3553(a). Plus, the sentence fell within the range to which Harding had stipulated.

* * * * * After double

- checking the record for ourselves, we are satisfied that counsel has examined the record conscientiously for appealable issues. And w e agree that any appeal would be frivolous. So we will affirm Harding’s conviction and sentence, grant counsel ’s motion to withdraw, and excuse counsel from petitioning for rehearing or for a writ of certiorari. See 3d Cir. L.A.R. 35.4, 109.2(a)

– (b).