NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 12-1399

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UNITED STATES OF AMERICA

v.

MARK ALLEN

Mark Allen, 

 Appellant

___________ 

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal No. 3-07-cr-00016-001)

District Judge: Honorable James M. Munley

___________ 

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

October 25, 2012

Before: HARDIMAN, GREENAWAY, JR., and VANASKIE, Circuit Judges.

(Filed: January 30, 2013)

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OPINION

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VANASKIE, Circuit Judge.

Appellant Mark Allen pled guilty to traveling in interstate commerce with the 

intent to promote, manage, and carry on the distribution of cocaine base in violation of 18 

U.S.C. § 1952(a)(3)(A), a Class D felony, see 18 U.S.C. § 3559(a)(4), and was sentenced 
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to prison for four years and a supervised release term of three years. Shortly after his 

supervised release term commenced, Allen engaged in new criminal conduct, resulting in 

revocation of supervised release and a new prison term of 18 months. His appeal from 

the revocation of supervised release is before us on a brief submitted by his attorney 

pursuant to Anders v. California, 386 U.S. 738 (1967). Counsel for Allen asserts that 

there are no non-frivolous issues on appeal. Allen, although informed of his right to file a 

brief on his own behalf, has not done so. Having reviewed the record, we agree with 

Allen‟s counsel. Accordingly, we will affirm the District Court‟s judgment and grant 

counsel‟s motion for leave to withdraw.

I.

We write primarily for the parties, who are familiar with the facts and procedural 

history of this case. Accordingly, we set forth only those facts necessary to our analysis. 

Merely three months after his release from prison on January 26, 2010, Allen was 

arrested and charged with multiple state law violations. The charges stemmed from the 

sale of crack cocaine and heroin to a confidential informant. Allen ultimately pled guilty 

to possession with intent to deliver a controlled substance and was sentenced to 27 to 60 

months‟ imprisonment. 

The Probation Office in the Middle District of Pennsylvania petitioned for 

revocation of Allen‟s supervised release on the basis of his new criminal conduct, as well 

as Allen‟s travel outside the district of his supervision without permission and his 

association with a felon. Immediately following the resolution of his state charges, Allen

sought disposition of the petition for revocation of his supervised release. Due to a move 
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to state prison, however, such efforts were unavailing. It was not until January 31, 2012 

that Allen‟s revocation hearing was held. By this time, Allen had been approved to be 

paroled on his state sentence. During the revocation hearing, Allen admitted to the 

violations. 

The advisory guidelines imprisonment range for Allen‟s violation of the 

conditions of supervised release would have been 33 to 41 months based upon the fact 

that his new criminal conduct qualified as a Grade A supervised release violation and 

Allen‟s criminal history category was level VI. See U.S.S.G. § 7B1.4(a) (2011). 

However, because the offense that resulted in the supervised release term – traveling in 

interstate commerce with the intent to promote, manage, and carry on the distribution of 

cocaine base – is classified as a Class D felony, the maximum term of imprisonment that 

could be imposed for the violation of supervised release was 24 months, see 18 U.S.C. § 

3583(e)(3), which became the advisory guidelines range. Allen sought a sentence of less 

than 24 months, explaining that his involvement in the new criminal conduct occurred 

after he relapsed into using narcotics due to the financial stress caused by the loss of a 

substantial amount of money in a failed business venture with his boss. Allen also 

offered as justifications for a lower sentence his cooperation with law enforcement and 

the delay in the revocation hearing, effectively barring Allen from requesting concurrent 

terms of imprisonment for the state offense and supervised release violations. Finally, 

Allen pleaded that his participation in a substance abuse treatment program warranted 

leniency. 
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The District Court considered Allen‟s rehabilitation efforts and imposed a 

sentence below the maximum term of 24 months. Allen was sentenced to 18 months‟ 

imprisonment, consecutive to his state term. Allen appealed. 

II.

The District Court had jurisdiction under 18 U.S.C. § 3231, and we have appellate 

jurisdiction under 28 U.S.C. § 1291. 

A.

Pursuant to Anders, counsel for a defendant may seek to withdraw if, after

reviewing the District Court record, he or she is “persuaded that the appeal presents no 

issue of even arguable merit.” See 3d Cir. L.A.R. 109.2(a). Specifically, counsel must

“(1) . . . satisfy the court that counsel has thoroughly examined the record in search of 

appealable issues, and (2) . . . explain why the issues are frivolous.” United States v. 

Youla, 241 F.3d 296, 300 (3d Cir. 2001) (citation omitted). Although not every 

conceivable claim need be raised and rejected, counsel “must meet the „conscientious 

examination‟ standard set forth in Anders.” Id. When presented with an Anders brief, we 

engage in a two-step analysis to consider: “(1) whether counsel adequately fulfilled 

[Third Circuit Local Appellate Rule 109.2(a)‟s] requirements; and (2) whether an 

independent review of the record presents any nonfrivolous issues.” Id. (citation 

omitted). If we find that “the Anders brief initially appears adequate on its face,” the 

second step of the inquiry will be “confine[d] . . . to those portions of the record 

identified by . . . [the] Anders brief.” Id. at 301. If this Court agrees with counsel‟s 

assessment of the appealable issues, we “will grant trial counsel‟s Anders motion and 
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dispose of the appeal without appointing new counsel.” Id. at 300 (quoting 3d Cir. 

L.A.R. 109.2(a)). When reviewing an Anders motion, we exercise plenary review. See 

Simon v. Gov’t of Virgin Islands, 679 F.3d 109, 114 (3d Cir. 2012). 

B.

Allen‟s counsel raises three issues: (1) the District Court‟s jurisdiction; (2) the 

sufficiency of the evidence of a supervised release violation; and (3) the reasonableness 

of the sentence imposed. After a thorough review of the record, we agree with Allen‟s 

counsel that this case presents no issues of even arguable merit. 

1.

The Sentencing Reform Act of 1984 gives district courts authority to modify, 

extend, terminate, or revoke a term of supervised release. 18 U.S.C. § 3583(e). Allen‟s 

original conviction involved conduct taking place, in part, in the Middle District of 

Pennsylvania. Allen was sentenced for those violations in the Middle District of 

Pennsylvania. Although Allen‟s probation officer was located in the Eastern District of 

Pennsylvania, jurisdiction was never transferred to that District. Allen‟s new violation

occurred in the Middle District of Pennsylvania. Because the Middle District of 

Pennsylvania plainly had jurisdiction to revoke the supervised release it had imposed, 

there is no non-frivolous basis for challenging the jurisdiction of the District Court.

2.

Supervised release may be revoked based upon a finding by a preponderance of 

the evidence that a condition of supervision has been violated. See 18 U.S.C. § 3583(e); 

United States v. Maloney, 513 F.3d 350, 354 (3d Cir. 2008). Allen was given notice of 
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the violations with which he was charged prior to the revocation hearing. Allen admitted 

to a Grade A violation and other technical violations. Even if Allen had not admitted to 

the violation, proof of a subsequent state court criminal conviction is more than sufficient 

to establish a Grade A violation. See United States v. Lloyd, 566 F.3d 341, 344 (3d Cir. 

2009) (finding that Lloyd‟s guilty plea to a charge of felon in possession was sufficient to 

establish a violation and thus justify revocation). Therefore, there is no non-frivolous 

basis for challenging the sufficiency of the evidence for revocation of supervised release. 

3.

The District Court accepted Allen‟s mitigation arguments and varied downward 

from the advisory guidelines imprisonment range of 24 months, to a sentence of 18 

months. Specifically, the District Court stated that Allen had “impressed [the Court]” 

with his positive attitude and the Court noted that he “seem[ed] to be trying to change 

[his] life around.” (A. 44.) 

A sentence for violation of supervised release is imposed “primarily to sanction 

the defendant‟s breach of trust „while taking into account, to a limited degree, the 

seriousness of the underlying violation and the criminal history of the violator.‟” United 

States v. Bungar, 478 F.3d 540, 544 (3d Cir. 2007) (quoting United States v. Dees, 467 

F.3d 847, 853 (3d Cir. 2006)). The sentencing court must also take into consideration the 

policy statements set forth in Chapter 7 of the Guidelines. Id. The sentence imposed in 

this case reflects a careful consideration of the pertinent factors. 

The District Court was also within its discretion to impose a prison term 

consecutive to Allen‟s state sentence. See generally United States v. Swan, 275 F.3d 272, 
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283 (3d Cir. 2002) (district court has discretion to impose a consecutive versus a 

concurrent term of incarceration under § 7B1.3(f)). Consequently, there is no nonfrivolous basis for challenging the reasonableness of the District Court‟s revocation 

sentence.

III.

For the foregoing reasons, we will affirm the judgment and sentence of the District 

Court and grant defense counsel‟s motion to withdraw. Counsel is also relieved of any 

obligation to file a petition for a writ of certiorari in the Supreme Court. See L.A.R. 

109.2(b).