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w . v i l l a no v a . e du/thir dc ir c uit_2013/1077NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

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No. 12

- 2150

_____________ UNITED STATES OF AMERICA

v. ROBERT TAYLOR, JR., Appellant

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No. 12

- 2151

_____________ UNITED STATES OF AM ERICA

v. ROBERT TAYLOR, JR., Appellant

______________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. C rim . Action No

. 2

- 11

- cr - 00 154

- 001 and 2

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- cr - 00 543

- 001 ) District Judge: Honorable Mitchell S. Goldberg

______________ S ubmitted Under Third Circuit L

. A

. R

. 34.1(a) March 22, 2013

______________ Before: MCKEE, Chief Judge , GREENAWAY, JR. , and GARTH, Circuit Judges

. (Opinion Filed: March 27, 2013 )2 ______________ OPINION

______________ GREENAWAY, JR., Circuit Judge

. R obert Taylor (“Taylor”) appea ls the District Court’s April 24 , 2012 judgment revoking his supervised release, and sentence of 10 months ’ imprisonment and 2 years of supervised release. His counsel filed a brief, pursuant to Anders v. California , 3 86 U.S. 738 (1 967), asserting that no nonfrivo lous issues exist for appeal and seeking to withdraw as counsel. For the reasons below, we will grant counsel’s motion to withdraw and affirm the judgment of the District Court.
I. Background We write primarily for the benefit of the parties and recount only the facts essential to our discussion. In 1998, Taylor was convicted of possession with intent to distribute cocaine and marijuana and sentenced to 151 months ’ imprisonment, 3 years of supervised release, a fine of $800 , and a special assessment of $100. I n 2000, as a federal inmate, Taylor was convicted of one count of possession of a prohibite d object. He was
sentenc ed to an additional 12 months’ imprisonment, 3 years of supervised release, and a $100 special assessment. As a condition of his release, Taylor could not commit another “federal, state or local crime.”
A fter completing his sentences for both offenses , Taylor , while on supervised release , was apprehended by the police on May 15, 2011 due to his in volvement in a3 scheme to return stolen merchandise to home improvement stores in exc hange for cash and gift cards. Taylor appeared in the Court of Common Pleas in Bucks County , Pennsylvania where he pled guilty to disorderly conduct and received 90 days ’ probation. As a result of Taylor’s conduct , the Probation Office filed petitions alleging that he violated his supervised release. The District Court f or the Eastern District of Pennsylvania held a revocation hearing on February 28, 2012. Taylor ’s couns el argued that Taylor’s disorderly conduct conviction, a summary offense, did not constitute a “local crime , ” as defi ned by the Pennsylvania Crimes C ode. He also claimed that there was insufficient evidence to find that a theft had occurred. The Distric t Court adopted the government’s argument that a summary offens e did constitute a “local crime, ” and that Taylor had violated his supervised release

. After a hearing , the Court found that Taylor had committed a Grade C violation

. Given Taylor’s prior off enses, he qualified for a Category VI criminal history . T he applicable Sentencing Guideline s range was 8 to 14 months. The Court sentenced Taylor to 10 months ’ imprisonment , and an additional t wo years of supervised release.
I I . Jurisdiction The Distric t Court had jurisdiction under 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
I II . Standard of Review
“In [ Anders ] , the Supreme Court explained the general duties of a lawyer representing an indigent criminal defendant on appeal when the lawyer seeks leave to4 withdraw from continued representation on the grounds that there are no nonfrivolous issues to appeal.” United States v. Marvin , 211 F.3d 778, 779 (3d Cir. 2000). The attorney must always “suppo rt his client’s ap peal to the best of his ability.” Anders , 386 U.S. at 744. If, however, “ counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” Id.
T o withdraw, counsel must “satisfy the court that he or she has thoroughly scoured the record in search of appealable issues,” and “explain why the issues are frivolous.”
Marvin , 211 F.3d at 7 80. Thus, this Court’s inquiry when considering a lawyer’s Ande rs brief is two

- fold : we must determine “(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 non

- frivolous issues.” United States v. Youla , 24 1 F.3d 296, 300 (3d Cir. 2001). In accordance with 3d Cir. L.A.R. Rule 109.2, if an appeal is ju dged to be wholly frivolous, this Court must “grant trial counsel’s Anders motion , and dispose of the appeal without appointing new counsel.” Id. (quoting 3d Cir. L.A.R. Rule 109.2(a)); s ee also United States v. Coleman , 575 F.3d 316, 321 (3d Cir. 2009) (quotation marks omitted).
I I I. Analysis Counsel thoroughly reviewed the record and concluded that: (1) the initiation of the revocation cannot be challenged as outside of the District Court’s authority ; (2) Taylor was afforded all p rocedural protections under Federal Rule of Criminal Procedure5 32.1, and received the required due process ; (3 ) there was sufficient evidence in the record to support the District Court’s rev ocation of supervised release; and (4) the sentence imposed by the District Court was both proced urally and substantively sound. A. Initiation of Revocation Proceeding Taylor may challenge the validity of the probation o fficer’s petition to the court as an im proper initi ation of his revocation hearing. H owever, this is not a colorable claim

. Probation officers do have authority to petition the court. S ee , e.g., United States v.
Davis , 151 F.3d 1304, 1307 (10th Cir. 199 8 )

. 18 U.S.C. § 3603( 2 ) aut horizes a probation officer “to report the conduct and condition [of a person on supervised release] to the sentencing court ,” and the “petition” serves as such a report. Id. at 1307 . The petition is “illustrative” and it is u ltimately the sentencing court that decides whether to initiate revocation proceedings, which it has authority to do under 18 U.S.C. § 3 58 3(e) . We agree with counsel’s conclusion that a ppealing the initiation of the revocation hearing would be frivolous.
B. Procedural Protections Because revocation of supervised release proceedings may result in a “loss of liberty , ” they are subject to due process considerations. United States v. Barnhart , 980 F.2d 219, 222 (3d Cir. 1992) ( cit ing Gagnon v. Scarpelli , 411 U.S. 778, 782 (1973 ))

. These requirements have been incorporated into Fed. R. Crim. P. 32.1 , which provides for a prompt preliminary hearing to determine probable cause ( Fed

. R. Crim. P. 32.1(b)(1)(B) ) , as well as a revocation hearing ( Fed

. R. Crim. P . 32.1(b)(2) )

.6 Having reviewed the record, counsel found that Taylor was afforded all of the proper procedural protections. A preliminary hearing was held in compliance with Fed

. R. Crim. P. 32.1(b)(1)(B)

. For the revocation hearing, Fed. R. Cri m. P. 32 .1(b)(2) requires the Court to hold such a hearing “within a reasonable time,” and provides that a person receive all procedural requirements. Taylor was accorded all process due to him. Taylor received written notice of the alleged violations in the for m of the probation officer’s petition for revocation. See Barnhart , 980 F.2d at 223. The evidence against Taylor was disclosed, and through counsel , he was given an opportunity to question the probation and investigating officer, as well as present evide nce on his own behalf. Moreover, although he refrained from doing so, he wa s allowed to make a statement. We agree that a challenge arguing that the District Court did not comply with the Fed

. R. Crim. P. 32.1 and due process requirements would be frivol ous. C . Sufficiency of Evidence During the proceedings, Taylor challenged whether his Pennsylvania disorderly conduct conviction , a “summary offense , ” qualified as a “local crime ,” for purposes of his supervised release condition. 1

1 One of the conditions for supervised release stated: “The defendant shall n ot commit another federal, state, or local crime.” H e argued that the P ennsylvania Crimes C ode in its defini tion of offense, 18 Pa. C ons . S tat

. A nn . § 106, did not include summary offenses in its list of crimes, which included other felonies and misdemeanors. In response, the7 gov ernment relied on the fact that 106(a) defines a “crime” as an offense “for which a sentence of death or of imprisonment is authorized , ” 18 Pa. C ons . Stat. Ann. § 106, and the definition of “ summary offense ,” provides for a sentence of imprisonment, i d

. at § 106 (c )

. 2

Moreover, the District Court determined that the investigating detective’s testimony regarding Taylor’s admission that he should have known that the items he was returning were stolen, was enough to find that a theft had occurred

. When the condition of supervised re lease is not to commit a crime, the D istrict Court does not have to rely on an indictment or conviction as evidence to find a violation

. United States v. Poellnitz , 372 F.3d 562, 566 (3d Cir. 2004). The Court is only required under 18 U.S.C. § 3583 (e)(3) to find, by a preponderance of the e vidence , that a violation occurred. Whether based on its finding that Taylor’s Pennsylvania conviction was a “local crime” or that a theft had occurred, the District Court was provided with more than enough evidence to find a violation of supervised relea se, and no nonfrivo lous challenge against the sufficiency of th is evidence exists. A fter reviewing both arguments, t he District Court adopted t he reasoning of the government. We agree with counsel that there was a sufficient legal basis to support the District Court’s finding that a summary offense was a “local crime.”

2 Counsel, and the government in its letter to the District Court, provided Pennsylvania Superior Court and Commonwealth Court cases that support the conclusion that a summary offense is a crime. See, e .g. , Commonwealth v. Matty , 619 A.2d 1383, 1385

- 86 (Pa. Super. Ct. 1993); In Interest of Golden , 365 A.2d 157, 158

- 59 (Pa. Super. Ct. 1976); Lewis v. Commonwealth , 459 A.2d 1339, 1341 (Pa. Commw. Ct. 1983).8 D. Reasonableness of Sentence Finally, counsel concludes that a challenge of the reasonableness of Taylor’s sentence of 10 months ’ imprisonment , and t wo years of supervi sed release would be frivolous. Under 18 U.S.C. § 3 583 (e), if the District Court finds a violation of supervised release, the District Court has the authority to impose a sentence of imprisonment, including another term of supervised release. Johnson v. U nited States , 529 U.S. 694, 713 (2000)

. In evaluating an appeal of a sentence imposed following revocation , we review the District Court’s decision for procedural and substantive reasonableness under an abuse of discretion standard

. United States v. Youn g , 6 34 F.3d 233, 237 (3d Cir. 2011 ) ( quoting United States v. Doe , 617 F.3d 766, 770 (3d Cir. 2010) )

. Procedurally, t he District Court must give meaningful consideration of the factors in 18 U.S.C. § 3553(a), and apply those factors reasonably. Id. Subs tantively, we look to “ whether the final sentence, wherever it may lie within the permissible statutory range, was premised upon appropriate and judicious consideration of the relevant factors. ” Id

. At sentencing , a fter hearing arguments on both sides, t he District Court found Taylor’s conduct to constitute a Grade C violation , which , given his Category VI criminal history determination, set the statutory range from 8 to 14 months . 18 U.S.C. § 3583(e) and 18 U.S.C. § 3583(h) also limit the sentence the Court may impose given the class of9 felony for which the original supervised release was imposed. 3

T he District Court also considered the relevant factors of 18 U.S.C. § 3553(a) , as

re quired by 18 U.S.C. § 3583(e). Although the District Court did not discuss each § 35 53(a) provision at length , the record as a whole reflects the Court’s consideration of these factors when imposing Taylor’s sentence , including the nature of the crime and the defendant’s criminal history

. The District Court’s sentence is procedurally rea sonable. Given Taylor’s original offenses, a term of 10 months of imprisonment and the additional two years of supervised release were well within t he limits imposed by 18 U .S.C. § 3583(e) and 18 U.S.C. § 3583(h) and the range set by the Guidelines

.

The District Court ’s sentence was also substantively sound. The correct procedure was employed and a reasonable conclusion reached given the evidence presented. See Young , 6 34 F.3d at 237 (“ Absent procedural error, we wi ll affirm the sentencing court

‘ unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.’” ( quoting Doe , 617 F.3d at 770 ) ). As noted, any challenge to the sentencing procedure would be f rivolous.
VI. Conclusion Because this Court’s own review of the record reveals no additional viable issues,

we find that no nonfrivolous issues exis t for consideration on appeal. We will grant counsel’s motion to withdraw, pursuant to Anders , and affirm the judgment of the District

3 The limits imposed by 18 U.S.C. § 3583(e) on th e term of imprisonment was three years for the Class B felony and two years for the Class D felony. The limits imposed by 18 U.S.C. § 3583(h) on the term of supervised release was four years for the Class B felony and two years for the Class D felony.10 Court. Counsel is also relieved of any obligation to file a petition for a writ of certiorari in the Supreme Court. See 3d Cir. L.A.R. 109.2(b).