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w . v i l l a no v a . e du/thir dc ir c uit_2012/847NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______ No. 11

- 3308

______ UNITED STATES OF AMERICA

v. NELSON OLAYANJU,

Appellant

___ ___ On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal No. 3

- 1 0

- cr - 00 571

- 001 ) District Judge: Honorable Peter G. Sheridan

______ Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

June 19, 2012 Before: AMBRO , a nd VANASKIE, and VAN ANTWERPEN, Circuit Judges (Filed: June 20, 2012 )

______ OPINION OF THE COURT

______ VAN ANTWERPEN, Circuit Judge

. Nelson Olayanju appeals the sentence resulting from his plea of guilty to a count of conspiracy to commit b ank fraud, in violation of 18 U.S.C. § 1349. Olay anju was sentenced to 51 months of incarceration , three years of supervised release, and restitution2

in the amount of $ 236,267.62 . Counsel for Olayanju has filed a brief pursuant to Anders v. California , 3 86 U.S. 738 (1967), and requested leave to withdraw. Because we agree that there are no non

- frivolous issues for Olayanju to appeal, we will grant Olayanju‟s counsel leave to withdraw and will affirm t he District Court‟s sentence

. I. Because we write pri marily for the parties, we set forth only the facts and history relevant to the disposition of this appeal. Olayanju pleaded guilty to one count of conspiracy to commit bank fraud

. 1 As a part of the plea agreement, Olayanju and the
G overnment agreed that if the District Court adopted a Sentencing Guidelines offense level between 21 and 24, neither party would seek a sentence outside the corresponding sentencing range

. The parties disagreed , however, regarding the enhance ment for Olayanju playing an “aggr avating role ” under U.S.S.G. § 3B1.1(a). Olayanju argued for

a 3

- level enhancement, while t he Government argued for a 4

- level enhancement . The District Court agreed with the Government. Olayanju also reserved his rights to challenge the loss amount calcu lated under
U.S.S.G. § 2B1.1. The Probati on Officer determined that the amount of intended loss was more than $400,000 but less than $1,000,000, thereby triggering a 14

- level enhancement. Olayanju contended the actual loss was more than $200,000 but less than

1 The grand jury indicted Olayanju on fourteen counts. These included one charge of conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349, twelve counts of bank fraud, in violation of 18 U.S .C. § 1344, and one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A.3

$400,000. The D istrict Court analyzed § 2B1.1, adopted the Government‟s argument regarding intended loss , and added 14 levels

. Olayanju‟s offense level was calculated to be 22. 2 When combined with Olayanju‟s criminal history score of III, this res ulted in an advisory range of 51 to 63 months. The District Cour t imposed a 51 month sentence, a three

- year supervised release term, and ordered restitution in the amount of $236,267.62. Olayanju filed a not ice of appeal, and his counsel filed an Anders brief with this Court. The Government has filed a brief concurring with Olayanju‟s counsel that no non

- frivolous issues exist in the appeal. Olayanju was notified of his right to file a pro se brief explaining why his conviction or sentence should be ove rturned on appeal, but has failed to do so.
I I . The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. This Court has appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary review over an Anders bri ef

. See Penson v. Ohio , 488 U.S. 75, 80 (1988) (“[T]he appellate court .

. . must .

. . itself .

. . decide wheth er the case is wholly frivolous ” (internal quotation marks and citation omitted)).
II I .

2 The base offense level for an offense committed under 18 U.S.C. § 1349 is 7 . The District Court added 4 levels for the “aggravating role” and 14 levels for the a mount of loss as discussed supra . The District Court then made a 2

- level downward adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a), and a 1

- level downward adjustment for assisting the authorities by entering a plea of guilty pur suant to U.S.S.G. § 3E1.1(b). The final level was thus 22.4

Our local rules provide that where “counsel is persua ded that the appeal presents no issue of even arguable merit, counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California , 386 U.S. 738 (1967).” T HIRD C IRCUIT L.A.R. 109.2(a). When presented with an Anders brief, our inqui ry is “twofold : (1) whether counsel adequately fulfilled [Third Circuit Local Appellate Rule 109.2's] requirements; and (2) whether an independent review of the record presents any nonfrivolous issues.” United States v. Coleman , 575 F.3d 316, 319 (3d Cir. 2009) (alteration in original) (internal quotation mark omitted) (quoting United States v. Youla , 241 F.3d 296, 300 (3d Cir. 2001) ).
In an Anders brief appellant 's counsel must “satisfy the court that he or she has thoroughly scoured the record in searc h of appealable issues” and then “explain why the issues are frivolous.” United States v. Marvin , 211 F.3d 778, 780 (3d Cir. 2000)

. If the Anders brief “initially appears adequate on its face, the proper course „is for the appellate court to be guided in reviewing the record by the Anders brief itself ‟ ” and confine our review to those portions of the record implicated by the brief. Youla , 241 F.3d at 301 (quoting United States v. Wagner , 103 F.3d 551, 553 (7th Cir. 1996) ). Counsel identified three poten tial areas of that could give rise to an appeal in his brief : (1) the jurisdiction of the D istrict C ourt , (2) the validity of the plea, and (3) the reasonableness and l egality of the sentence. Counsel has demonstrated an examination and understanding of t he plea agreement entered into by Olayanju , and the limitations set forth therein. He has also conducted a substantive analysis of the plea and sentencing hearings in the context of relevant case law and concluded that no non

- frivolous5

arguments can be ma de on appeal

. We have determined that the brief filed in this case is thus facially adequate , and accordingly limit our review to the portions of the record implicated by it. After reviewing the se portions of the record, w e agree with counsel that no no n frivolous issues exist. First, t he District Court properly had juri sdiction under 18 U.S.C § 3231. Second, the transcr ipt of the plea hearing demonstrates t hat the District Court complied with the legal standards set forth in Boykin v. Alabama , 395 U.S . 238 (1969) and Federal Rule of Criminal Procedure 11. As required by Boykin , Olayanju‟s plea was knowing and voluntary. Boykin , 395 U.S. at 243 n.5. In its colloquy the District Court made Olayanju aware of his rights, and notified him that by ple adi ng guilty he was waiving those rights . In addition, the plea agreement made clear that Olayanju was waiving his appellate rights. 3 A s a result of the thorough nature of the plea colloquy and plea agreement below, no non

- frivolous issue exists for Olayanj u to pursue in this appeal. Third, and finally, the sentence imposed pre sents no non

- frivol ous issues. Here,
t he District Court imposed a sentence that was procedurally and substantively reasonable. The District Court properly conducted the three

- step s entencing process that constitutes the procedural aspect of the sentencing hearing

. See United States v. Gunter , 462 F.3d 237, 247 (3d Cir. 2006). At the first step, it correctly calculated the advisory Guidelines

3 Olayanju waived his right to challenge the sentence imposed if the “sentence fell within or below the Guidelines range that results from a total Guidelines offense level of 21.” The plea agreem ent also states that this waiver is “binding on the parties even if the Court employs a Guidelines analysis different from that stipulated to herein.” The District Court used an offense level of 22 and imposed a 51 month sentence, which is within the 46 t o 57 month sentence associated with an offense level of 21

.6

range
. The District Court‟s rulings reg arding the “aggravating role” played by Olayanju, and the amount of loss, were made after the se issues were discussed at the hearing . B oth rulings were based upon factual findings that justified the District Court‟s conclusion. At the second step of the procedural analysis, t he District Court was not presented with an y departure motions for it to rule upon. For the third and final step, the District Court

ev aluated the § 3553(a) factors and explained their significance in its sentence

. These actions dem onstrate that the District Court‟s sentence was procedurally sound. As a result, we turn to the substantive features of the sentence

. Where a sentence imposed is procedurally sound, “we will affirm it unless no reasonable sentencing court would have imp osed the same sentence on that particular defendant for the reasons the district court provided.” United States v. Tomko , 562 F.3d 558, 568 (3d Cir. 2009) (en banc). After a review of the facts of Olayanju‟s guilty plea and sentencing hearing, we find th at the District Court displayed a firm grasp of the facts and circumstances surrounding Olayanju‟s conduct and the relevant Sentencing Guideline considerations. With these in mind , t he District Court sentenced Olayanju to the bottom o f the advisory Guidel ines range; a r ange which Olayanju had agreed was reasonable in his plea agreement . To that end, we are satisfied that there are no non frivo lous issues for Olayanju to pursue on appeal

. IV . For the foregoing reasons, we grant the motion to withdraw and a ffirm the District Court‟s judgment and sentence.