NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 12

- 1399

____________ 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 ) D istrict 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 )

________ ___ OPINION

___________ 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 sentenced2

to prison for four years and a supervised release t erm 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 befo re us on a brief submitted by his attorney pursuant to Anders v. California , 386 U.S. 738 (1967) . C ounsel for Allen asserts that there are no non

- frivolous issues on appeal. Alle n , although informed of his right to file a brief on his own behalf, has not done so

. Having reviewed the record, w e 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 , Alle n 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 sen tenced 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 h is associat ion 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 move3

to state prison, however, such ef forts 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 b ased 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, m anage, 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 , s ee 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 fina ncial 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 revoc ation hearing , effective ly barring Allen from requesting concurrent
term s of impriso n ment for the state offense and supervised release violations

. Finally, Allen pleaded that his participation in a substance abuse treatment program warranted leniency.4

The District Court cons idered Allen‟s rehabilitation efforts and imposed a sentence below the maximum term of 24 months. Allen was sent enced 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). A lthough 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 consid er : “(1) whether counsel adequately fulfilled [Third Circui t 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 wit h counsel‟s assessment of the appealable issues, we “will grant trial counsel‟s Anders motion and5

dispose of the appeal without appointing new counsel.” Id

. at 300 (quoting 3d Cir. L.A.R. 109.2(a))

. When re viewing an Anders motion, w e exercise plenary review. See Simon v. Gov’t of Virgin Islands , 679 F.3d 109, 114 (3d Cir. 2012)

. B. Allen ‟s counsel raise s th ree issues : (1) the D istrict C ourt‟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 ca se presents no issues of even arguable merit. 1. The Sentencing Reform A ct of 1984 gives district court s 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 office r was located in th e Easter n 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 chall enging the jurisdiction of the District C ourt. 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 of6

the violations with which he was charged prior to the revocation hearing. Allen admitte d 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 violat ion 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 g uidelines imprisonment rang e of 24 months, to a sentence of 18 months. Specifically, the District Court stated that Allen had “impressed [the C ourt]” with his positive attitude and the Court noted that he “seem[ed] to be trying to change [his] life around.” (A. 44.) A sentence f

or violation of supervised release is imposed “prim arily 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 t he 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 D istrict C ourt was also within its discretion to impose a prison term

cons ecutive to All en‟s state sentence. See generally United States v. Swan , 275 F.3d 272,7

283 (3d Cir. 2002) ( d istrict c ourt has discretion to impose a consecu tive versus a concurrent term of incarceration under § 7B1.3(f) )

. Consequently, there is no non

frivolous basis for challenging the reasonableness of th e District Court‟s revocation
sentence. III. For the foregoing reasons, we will affirm the judgment and se ntence 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).