NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 16

- 1023

_____________ UNITED STATES OF AMERICA

v. RASSOL CHINA,

Appellant

_____________ On Ap p e al from the United States District Court for the District of New Jersey District Court No. 2

- 15

- cr - 00203

- 002 District Judge: The Honorable Jose L. Linares
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

September 29 , 2016 Before: AMBRO, SMITH, and FISHER , Circuit Judges

(Filed: October 4, 2016 )

_____________________ OPINION *

_____________________ SMITH, Circ uit Judge.

* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

A grand jury in the District of New Jersey returned an indict ment against Rassol China and four other individuals, charging China with conspir ing to
distribute heroin in violation of 21 U.S.C. § 846 and distribution of heroin in violation of 21 U.S.C. § 841 (b)(1)(A) and 18 U.S.C. § 2. These charges were filed
after the police knocked and announced themselves at a heroin operation in a third floor apartment, prompting China and three others to jump out of the apartment window (the police appre hended the f ifth individual before they entered the apartment building). China apparently fractured his heels in the jump, but nonetheless was able to reach his car , drive directly toward a law enforcement
officer , almost hitting him, and elude capture

. Law enforcement s ubsequently apprehended China in the hospital where he was receiv ing treatment. Thereafter, China pleaded guilty pursuant to a written plea agreement that included an appellate waiver. A presentence report was prepared, which
determine d that China was a career offender because of multiple controlled substance convictions. See U.S.S.G. § 4 B 1.1. Although China initially challenged
the applicability of the career offender enhancement, defense counsel withdrew that challenge at sentencing

. The enhancement resulted in a n offense level of 34 and a criminal history category of VI, yielding a n advisory G uideline range of 2623

to 327 months. 1 The District Court sentenced C hi na to 262 months of imprisonment. This timely appeal followed. 2 Coun sel submitted an Anders brief and a motion seeking to withdraw as counsel. See Anders v. California , 386 U.S. 738, 744 (1967)

. After reviewing the Anders brief, we are satisfied that counsel “thoroughly examined the record in search of appealable issues” and adequately “explain[ed] why the issues are frivolous.” United States v. Youla , 241 F.3d 296, 300 ( 3d Cir. 2001). China’s guilty plea limited the issues he could challenge on appeal to
whether he could be haled into court on the charges in the indi ctment , the validity of his guilty plea, and the legality of the sentence imposed. See U nited States v.
Broce , 488 U.S. 563, 570

- 75 (1989)

. C ounsel explained at length that the guilty plea colloquy largely complied with the r equirements of Federal Rule o f C riminal Procedure 11(b) . Counsel appropriately noted th a t the colloquy did not advise China , contrary to Rule 11(b)( 1)(H) ’s directive, of the maximum possible penalty of life imprisonment. This omission , counsel explained , would not warrant setting

as ide China’s conviction because plain error review applied under United States v.

1 Before the PSR applied the ca reer offender enhancement, China’s offense level , without the acceptance of responsibility adjustment , was 32 and his criminal history category was VI. 2 The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.4

Vonn , 535 U.S. 55, 59 (2002) , and the error di d not affect China’s substantial rights as the plea agreement explicitly set out the minimum and maximum sentence at play

. The g overnment agreed that China was well aware of the statutory maximum of life imprisonment , noting it was set forth in his plea agreement , as well as in a document entitled “Application for Permission to Enter Plea of Guilty” that China signed after reviewin g it with counsel. We agree that this omission in the plea colloquy did not affect China’s substantial rights.
Defense counsel also recognized in the Anders brief that China’s plea agreement contained an appellate waiver. T he government acknowledge d tha t the colloquy with regard to the appellate wai ver was deficient in certain respect s and elected not to enforce the waiver. 3 Because the government did not invoke the appellate waiver, we need not examine whether the waiver was valid and bars our review. See United States v. Goodson , 544 F.3d 529, 535 (3d Cir. 2008)

. We note, however, that even if the appellate waiver w ere unenforceable, that would result in setting aside only the waiver ( not the District Court’s judgment ) and removing any
bar to our rev iew

. Id. at 541. Having concluded there is no basis for setting aside China’s guilty plea, w e
turn to the legality of China’s sentence , which is reviewed for an abuse of

3 Indeed , China’s pro se submission , which he filed pursuant to Third Circuit L.A.R. 109.2(a) , also notes there was error in the District Court’s review of the terms of the appellate waiver.5

discretion. United Sta t es v. Tomko , 562 F.3d 558, 56 7 (3d Cir. 2009)

. We conclud e that the District C ourt did not abuse its discretion in sentencing China to
262 months of imprisonment

. Counsel noted that the District Court arguably err ed in appl y in g an enhancement for obstruction of justice under U.S.S.G. § 3C1.2 because t hat enhanc ement was not contemplated as part of the plea agreement

. 4 Nonetheless, counsel acknowledged that application of this enhancement d oes not entitle China to relief. We agree. T he § 3C1.2 obstruction of justice enhancement affected only the total offense level of 32, which was rendered inoperative once it was
determined that the offense level from the career offender table was “greater than the offense level otherwise applicable.” U.S.S.G. § 4B1.1(b). Thus, the District Court did not err in calculating t he G uideline range under the career offender guideline. Nor do we discern any procedural error as there were no motions by China for the District Court to rule upon and the Court fully considered the argument for a downward variance. The within

- G uideline sentence, given the Court’s explanation for the sentence imposed , was not substantively unreasonable.

4 We note that China’s pro se submission also took issue with the proprie ty of the obstruction of justice enhancement. In his view, application of the enhancement constituted a breach of the plea agreement. Because it is the District Court that determines the applicable G uideline range, the government did not breach the plea agreement. Indeed, the plea agreement advised that “[t]he sentence to be imposed

. . . is within the sole discretion of the sentencing judge” and that the prosecution was not making “any representation or promise as to what guideline range may be found by the sentencing judge.”6

For the reasons set forth above, w e will affirm the judgment of the District
C ourt. Because o ur own independent review of the record fails to reveal any

n onfrivolous issues for appeal, we will grant counsel’ s motion to withdraw and affirm the judgment of the District Court

. We certify that the issues presented in the appeal lack legal merit and thus do not require the filing of a petition for writ of certiorari with the Supreme Court. 3d Cir. L

. A

. R

. 109.2(b).