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w . v i l l a no v a . e du/thir dc ir c uit_2012/1512NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________ No. 11

- 1635

_______________ UNITED STATES OF AMERICA

v. DEVLON SAUNDERS , A / K / A Dev , A / K / A Shawn, Appellant

_______________ On Appeal from the United States District Court F or the Middle District of Pennsylvania (D.C. C rimina l Action No. 1

- 10

- c r - 00 054

- 00 1 ) District Judge: Honorable Yvette Kane

_______________ Submitted Under Third Circuit LAR 34.1(a) January 23, 2012

_______________ Before: AMBRO , CHAGARES and HARDIMAN , Circuit Judges (Opinion filed : January 30, 2012 )

_______________ OPINION

_______________ AMBRO, Circuit Judge Devlon Saunders pled guilty to conspiracy to distribute, and possession with the
i ntent to distribute, 50 or more grams of cocaine base and marijuana in violation of 212 U.S.C. §§ 841 and 846. The plea agreement that he signed included a waiver of his right to appeal. Saunders’s initial Presentence Report recommended a term of imprison ment of 360 months to life based on computations under the United States Sentencing Guidelines. However, his appointed counsel briefed and argued myriad objections to that recommendation. The District Court accepted most of counsel’s arguments and
senten ced Saunders to 180 months’ imprisonment, three years’ supervised release, and a fine and assessment of $1,100. Saunders now appeals his sentence. Saunders’s attorney moves to withdraw as counsel under Anders v. California , 386 U.S. 738 (1967), asserting that all potential grounds for appeal are frivolous. Saunders has not filed a pro se brief. We grant the motion and affirm Saunders’s sentence. 1
I. Because we write solely for the parties, we recite only those facts necessary to our decision. In Marc h 2010, a sealed indictment was filed against Saunders and codefendants. It charged them with three counts: (1) conspiracy to distribute , and possession with intent to distribute , 50 or more grams of cocaine base and marijuana in violation of 21 U.S.C. §§ 841 and 846; (2) distribution , and possession with intent to distribute , 50 or more grams of cocaine base and marij uana in violation of 21 U.S.C. § 841; and (3) use of a communication facility to facilitate a drug trafficking offense in violation of 21 U. S.C. § 843(b).

1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.3 In May 2010, Saunders, through his appointed counsel, filed motions to suppress evidence with supporting briefs. Plea negotiations continued, and Saunders signed his plea agreement the following month. He pled guilty only to Count One, th e conspiracy charge. After he waived his right to appear before a District Judge, a Magistrate Judge conducted a guilty plea hearing. After the District Court accepted Saunders’s guilty plea, it ordered a Presentence Report. That Report calculated a cri minal offense level of 41 and a criminal history category of VI under the Sentencing Guidelines. Saunders’s counsel objected to the Presentence Report based on the Fair Sentencing Act of 2010, the propriety of a gun use enhancement, and the status of Saun ders’s criminal history, among other issues. A s noted, at the sentencing hearing the District Court resolved most of these issues in Saunders’s favor, App. at 92

- 120, and imposed a sentence of 180 months’ imprisonment. This sentence was within the Guidel ines range of 168 to 210 months that the Court deemed appropriate.
II. At the outset, it appears that Saunders has waived his right to appeal, as his plea agreement contained an appeal waiver. We “retain[] subject matter jurisdiction over t he appeal by a defendant who ha[s] signed an appellate waiver.” United States v. Gwinnett , 483 F.3d 200, 203 (3d Cir. 2007). However, “we will not exercise that jurisdiction to review the merits of [Saunders’s] appeal if we conclude that []he knowingly and voluntarily waived [his] right to appeal unless the result would work a miscarriage of justice. ” Id. In this case, the Magistrate Judge conducted a thorough colloquy in which4 Saunders confirmed that his waiver was knowing and voluntary. App. at 73

- 75. There is

no suggestion that he lacks capacity or that there were procedural defects. Lacking any indication of a miscarriage of justice, it is not necessary that we exercise jurisdiction here. Even if we were to do so , this appeal would fail under our Anders standa rd. Our rules provide that “[w]here, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, counsel may file a motion to withdraw and supporting brief pursuant to Anders .” 3d Cir. L. A.R. 109.2(a). If we concur with trial counsel’s ass essment, we “will grant [the] Anders motion, and dispose of the appeal without appointing new counsel.” Id. Accordingly , our inquiry is “twofold: (1) whether counsel adequately fulfilled the rule’s req uirements; and (2) whether an independent review of the record presents any nonfrivolous issues.” United States v. Youla , 241 F.3d 296, 300 (3d Cir. 2001). In his Anders brief, Saunders’s counsel identifies two potential grounds for appeal: the procedura l and substantive reasonableness of Saunders’s sentence. Our review of the record confirms counsel’s assessment that there are no nonfrivolous issues for appeal. No doubt w e review Saunders’s sentence for procedural and substantive reasonableness. See U nited States v. Starnes , 583 F.3d 196, 215 (3d Cir. 2009). The District Court correctly calculated the advisory Guidelines range, addressing the arguments of Saunders’s counsel. Finding for Saunders on many issues , the Court reduced the recommended offen se level from 41 to 31 and the recommended criminal history category from VI to V. Its ultimate sentence of 180 months was on the low side of the Guidelines range of 168 to 210 months and just half of the minimum of the range5 initially recommended, 360 mo nths to life. In addition, the District Court gave due thought to the sentencing factors enumerated in 18 U.S.C. § 3553(a). It considered the difficulty of Saunders’s home environment, the seriousness of his offense conduct, and the adequacy of deterrenc e. App. at 116

- 17 . Taken together, this is sufficient “to ensure that a substantively reasonable sentence has been imposed in a procedurally fair way .” United States v. Grober , 624 F.3d 592, 599 (3d Cir. 2010) (quoting United States v.
Levinson , 543 F.3 d 190, 195 (3d Cir. 2008)). Counsel adequately fulfilled the requirements of Anders . Because our independent review of the record fails to reveal any nonfrivolous ground for appeal, we will grant counsel’s motion to withdraw and affirm Saunders’s sentenc e.