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w . v i l l a no v a . e du/thir dc ir c uit_2015/168NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 14

- 2 055

________________ UNITED STATES OF AMERICA

v. DENNIS W. O’HARA, also known as “Punkin”,

Appellant

________________ Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1

- 12

- c r
- 0 0 01 0

- 001 ) District Judge: Honorable Sylvia H. Rambo

________________ Submitted under Third Circuit LAR 34.1(a)

on November 20, 2014
Befo re: AMBRO, SCIRICA and ROTH , Circuit Judges

(Opinion filed : February 11, 2015 )

________________ OPINION *

________________ ROTH , Circuit Judge

* This disposition is not an opinion of the full C ourt and purs uant to I.O.P. 5.7 does not constitute binding precedent.2

Counsel for Dennis W. O’Hara has filed a motion to withdraw from the case and
has su bmitted a brief to support this appeal. Pursuant to Anders v. California , 1 counsel argues that there are no non

- frivolous issues that can be raised on appeal by O’Hara

. On April 15, 2014, O’Hara filed a pro se Notice of Appeal. On August 4, 2014, O’Hara sought a 180

- day extension of time to file a brief , which was denied on August 13, 2014 , in an order directing O’Hara to file within sixty days. O’Hara has not filed a brief to
date

. O’Hara pled guilty to three counts: Distribution and Possession with I ntent to Distribute Cocaine Hydrochloride, Oxycontin, and Opana ; Unlawful Use of a
Communication Facility to Faci litate Drug Trafficking ; and Conspiracy to Distribute and
Possess with Intent to Distribute Cocaine Hydr ochloride, Oxycontin, and Opana

. Based on Total Offense Level 36 and Criminal History Category VI, the Presentence Investigation Report (PSR) calculate d that O’Hara was subject to a Guidelines sentencing range of 324 to 405 months. O’Hara initially raised numerous objections to the PSR, but

w ithdrew his objections in return for a recommended prison sentence of 180 months, corresponding to Total Offense Level 30 and Criminal History Category VI. At sentencing , O’Hara acknowledged that he had freely withdrawn his objections and the
District Cou rt imposed the stipulated total sentence of 180 months: 132 months on Count 1 and Count 3, to be served concurrently, and 48 months on Count 2, to be served consecutively.

1 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)

.3

In an Anders brief , an attorney must demonstrate to the court that he or she has
th oroughly examined the recor d for appealable issues, and must demonstrate within the
brief itself that the issues are frivolous. 2 “ C ounsel need not raise and reject every possible claim ,” but must satisfy the “conscientious examination” standard set forth
in Anders

. 3 When analyzing Anders briefs, we consider “(1) whether counse l adequately
fulfilled the rule’ s requirements, and (2) whether an independent review of the record presents any nonfrivolous issues.” 4 We are satisfied that counsel ’s brief has met th e required standard, carefully reviewing the record and finding no non

- frivolous issues.
Where the Anders brief appears adequate on its face , our independent examination of the record is to be gui ded by the brief itself. 5 Counsel raises three potential issues for
review: whether 1) the District Court had jurisdiction to enter the judgment of conviction and impose sentence; 2) the guilty plea was counseled, procedurally valid, and voluntary; and 3) the sentence was legal and reasonable. Here, jurisdict ion was proper because O’Hara committed an offense against the United States. 6 The guilty plea was also proper

. It was counseled and voluntary, and the District Court provided O’Hara with the various “admonitions and warnings” required by Federal Rule of Criminal Procedure 11 and

2 United States v. Youla , 241 F.3d 296, 300 (3d Cir. 2001)

. 3 Id. 4 Id. 5 Id. at 301. 6 See 18 U.S.C. § 3231.4

Boykin v. Alabama

. 7 Finally, the sentence was legal and reasonable. The PSR’s
calculated Guidelines range was 324 to 405 months. In withdrawing his objections to the PSR, O’Hara waived any objection to the calculation of the a pplicable Guidelines sentencing range

. T

he 180

- month sentence , moreover, represented a 44% downward departure from the lower end o f the PSR’s calculated Guidelines range , leaving O’Hara
with no reasonable cause to object. After reviewing counsel ’ s Anders brief and the record , we conclude that this case does not raise any non

- frivolous issues. Therefore, we will affirm the District Court ’ s sentence and grant counsel ’ s motion to withdraw.

7 See United States v. Schweitzer , 454 F.3d 197, 202

- 03 (3d Cir. 2006) (quoting Boykin v. Alabama , 395 U.S. 238, 242

- 44 (1969) (“ The court must advise the defendant, inter alia , of the waiver of certain constitutional rights by virtue of a guilty plea, the nature of the charges to which he or she is pleading guilty, the ‘ maximum possible penalty ’ to which he or she is exposed, the court ’ s ‘ obligation to apply the Sentencing Guidelines [and] .

. . discretion to depart from those guidelines under some circumstances,” and “the terms of any ple a
- agreement provision waiving the right to appeal or to collaterally attack the sentence. ’ The district court must ensure that the defendant receives these caveats, understands them, and still wishes of his or her own volition to plead guilty. ”)