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w . v i l l a no v a . e du/thir dc ir c uit_2011/717NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 10

- 1913

_____________ UNITED STATES OF AMERICA

v. WILLIAM L. LUCAS, also known as BILLY, William L. Lucas,

Appellant

_____________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Crim. No. 1

- 99

- cr - 00030

- 003) District Judge: Honorable Maurice B. Cohill , Jr.

_____________ Submitted Under Third Circuit LAR 34.1

May 12, 2011 Before: SMITH , CHAGARES and VANASKIE, Circuit Judges

(Opinion Filed: August 3, 2011 )

__ ___________ OPINION OF THE COURT

_____________ VANASKIE, Circuit Judge

. William L. Lucas (“Lucas”) admitted to violating the terms of his supervised release and was sentenced to twenty

- four months ‟ imprisonment to be served2

consecutively to his existing state sentence. Lucas then appealed. His attorney has moved to withdraw as counsel pursuant to Anders v. California , 386 U.S. 738 (1967). For the reasons that follow, we will grant the mot ion and affirm the Judgment o f the District Court

. I. As we write only for the parties, who are familiar with the facts and procedur al history of the case, we set forth only those facts necessary to our analysis.
Lucas ple a d ed guilty to conspiracy to posse ss with intent to distribute cocaine base in violation of 21 U.S.C. § 846 on January 26, 2000 and was sentenced to ninety

- six months in prison followed by five years of supervised release. Lucas served his term of imprisonment and was released in July 200 7. On August 5, 2008, while on supervised release, Lucas was arrested by the City of Pittsburgh Police and charged with two counts each of possession of a controlled substance and possession with intent to deliver. On December 9, 2009, Lucas entered a ne gotiated guilty plea in the Court of Common Pleas for Allegheny County to one count each of possession of a controlled substance and possession with intent to deliver

. He was se ntenced to five to ten years‟ imprisonment followed by ten years ‟ probation. As a result of this conviction, the U.S. Probation Office filed a Petition for Probation/Supervised Release Action on December 2 8, 2009 , alleging a violation of h is supervised release. In his h earing on March 22, 2010, Lucas admitted to violating the
term s of supervised release by illegally possessing a controlled substance. Based on this admission, the District Court found that he had violated his supervised release and further3

determined that Lucas‟ s advisory guidelines range called for an imprisonment term between twenty

- four and thirty months. Lucas‟ s counsel requested that the District Court impose no penalty or , alternatively , impose a sentence to run concurrent with his state sentence. The District
Court disagreed with counsel‟s recommendation. It stated that it was bothered by the similarity between the federal and state convictions and noted that a concurrent sentence would amount to essentially no punishment for the violation of supervised release. Accordingly, the District Court imposed a sent ence of twenty

- four months ‟ imprisonment to be served after the state sentence. Lucas filed a timely appeal, and appellate counsel was appointed for him . Lucas‟ s attorney has mov ed to withdraw and submitted an Anders brief.
II. The District Court had ju risdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Anders sets forth “the general duties of a lawyer representing an indigent criminal defendant on appeal when the lawyer seeks leave to withdr aw 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). We implement Anders through Local Appellate Rule 109.2, which , in pertinent part, provides:

Where , upon review of the district court record, 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 v. California , 386 U.S. 738 (1967), which must be serve d upon the appellant and the United4 States. The United States must file a brief in response. Appellant may also file a brief in response pro se. . . . If the panel agrees that the appeal is without merit, it will grant counsel‟s Anders motion, and dispo se of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, or that the Anders brief is inadequate to assist the court in its review, it will appoint substitute counsel, order supplemental briefing and restore the cas e to the calendar. 3d Cir. L.A.R. 109.2(a) . To meet the requirements of Local Appellate Rule 109.2, counsel must “satisfy the court that he or she has thoroughly scoured the record in sea rch of appealable issues,” and “explain why the issues are frivolous.” Marvin , 211 F.3d at
780. However, “[c]ounsel need not raise and reject every possible claim.” United States v. Youla , 241 F.3d 296, 300 (3d Cir. 2001) . “[A]t a minimum, he or she mu st meet the „conscientious examination‟ standard set forth in Anders .” Id. This Court, in turn, asks “whether counsel adequately fulfilled ” the requirements of Rule 109.2, and “whether an independent review of the record pres ents an y nonfrivolous issues. ” Id. When an Anders brief i s adequate, we limit our review to the portion of the record that is highlighted in the brief. Id. at 301. When the Anders brief is not adequate, we may undertake a more expansive review of the record. See id. (consulting portions of the record identified by the pro se brief where Anders brief was inadequate). Regardless of the adequacy of the Anders brief, we will grant counsel‟s motion to withdraw without appointing new counsel if we determine that the appeal is patentl y frivolous. See United States v. Coleman , 575 F.3d 316, 321

- 22 (3d Cir. 2009).
A.5

In his Anders brief, counsel raises only the issue of whether the District Court
i mposed an unlawful sentence

. In this case, counsel has fulfilled his obligation set forth
in Anders by explaining that the District Court‟s sentence was procedurally and substantively reasonable , and that no nonfrivolous appealable issues remain. Lucas has not submitted a brief on his own behalf. As a result, pursuant to Youla , we will limit our review to the portion of the record addressed in counsel‟s Anders brief. In a sentencing appeal, we “ review the sentence under an abuse

- of

- discretion standard ” to ensure

that the district court committed no significant procedural error, such as failin g to calculate (or improperly calculating) the guidelines range, treating the guidelines as mandatory, failing to consider the 18 U.S.C. § 3553(a) f actors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen s entence

– including an explanation for any deviation from the guidelines range. Gall v. United States, 552 U.S. 38, 51 (2007). The District Court committed no procedural errors in this case. The record indicates the District Court properly calculated L ucas‟s advisory guidelines range as twenty

- four to thirty months‟ imprisonment , to be served consecutively with his state sentence. The District Court also acknowledged the advisory nature of the guidelines , measured all arguments presented by the parties , considered the relevant factors set forth
in 18 U.S.C. § 3553(a), and thoroughly explained why it chose Lucas‟s sentence. Having found no procedural errors, we turn to whether or not the sentence imposed by the District Court was substantively reasonabl e. “[T] he appellate court should consider the substantive reasonableness of the sentence imposed under an abuse

-6

of

- discretion standard” taking into account “the totality of the circumstances, including the extent of any variance from the guidelines range. ” Gall , 552 U.S. at 51. “I f the district court's sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Uni ted States v. Tomko , 562 F.3d 558, 568 (3d Cir. 2009) (en banc)

. In the present matter, the District Court carefully considered the circumstances of Lucas‟s case and arrived at a sentence at the low end of the guidelines range. This was a reasonable sent ence. I I I. In sum, we con clude that Lucas‟ s appeal does not present any non frivolous issues,

as the District Court did not ab use its discretion in imposing Lucas‟s sentence. Accordingly, we will grant counsel‟s motion to withdraw and affirm the Judgment o f the District Court

.