NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 12

- 2717

_____________ UNITED STATES OF AMERICA

v. ROBERT DEJAUN GAINES, Appellant

_______________ On Appeal from the United States District Court for the Mid dle District of Pennsylvania (D.C. No. 11

- cr - 088 ) District Judge: Hon. John E. Jones, III

_______________ Submitted Under Third Circuit LAR 34.1(a)

March 5, 2013 Before: SCIRICA, JORDAN , and ROTH, Circuit Judges

.

(Filed : March 13, 2013 )

___ ____________ OPINION OF THE COURT

_______________ JORDAN, Circuit Judge

. Robert Gain e s appeals the sentence imposed by the United States District Court
for the Middle District of Pennsylvania, and h is attorney moves to withdraw as counsel pursuant to A nders v. California , 386 U.S. 738 (1967). We will grant the motion to
withdraw and will affirm Gaines ’s sentence.2

I. Background On November 28, 2010 , the Pennsylvania State Police attempted to conduct a traffic stop of a car that they observed operating w ithout rear registration lights. The driver of the car attempted to flee, and a high

- speed chase ensued . During the chase, the pol ice drove over a silver object in the roadway

. They lost sight of the fleeing vehicle but later discovered it in a nearby p arking lot without its driver

. The police returned to the area in which they had seen the silver object and recovered a loaded, nickel

- p lated Ruger .22 magnum handgun. The p olice ultimately apprehended Gaines in connection with the
chase.
An officer r ead Gaines his Miranda rights , and , afterward, on the way to the police

sta tion, Gaines admitted that he had thrown a nickel

- plated handgun out of the car window. At the police station, Gaines was re

- read his Miranda rights. He then told police that he w as carrying the gun fo r protection. A grand jury indicted Gaines on one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). He initially pled not guilty but changed his plea t o guilty on October 31, 2011, pursuant to a written plea agreement with the government. 1

1 At the change of plea hearing, Gaines said he understood that by entering a guilty plea he was giving up, inter alia , the right to have the court decide any pretrial motions. H e verified his signature on the plea agreement and told the District Court that he had read and understood the agreement. The terms of the agreement were also summarized for Gaines, who agreed that the summary was accurate. He then stated that no threats had been made against him or his family to induce him to sign the plea agreement, and that he had signed it of his own free will. The Court also discussed Gaines’s concerns over some of the facts presented by the government and aspects of his criminal hi story. In the3

The District Court held a sentencing hearing on May 31, 2012 , and calculated the sentencing guidelines range as 92 to 115 months’ imprisonment. Citing § 4A1.3 of the United States Sentencing Guidelines, 2 Gaines moved for a downwar d departure from the guidelines range, on the grounds that his criminal history category of VI over represented the seriousness of his past crimes

. Gaines also requested a downward variance in consideration of the 18 U.S.C. § 35 53(a) sentencing factors and requested that any

s entence imposed by the Court run concurrently wi th his state prison sentence

. The
Court denied the motion for departure , noting that there had been an escalation in the
seriousness of the crimes committed b y Gai nes and that he had recently been convicted in state court on five counts of drug trafficking

. The Court also noted that Gaines had been
sentenced in abs entia in state court one week before the current offense. After considering the § 3553(a) factor s at length , including the fact that Gaines’s employment history was sporadic, that a substantial amount of his income was derived from drug trafficking, and that Gaines had been sentenced in state court on drug charges just before
he was arre sted o n the p resent offense , the Court went on to consider that Gaines had a

agreement, Gaines agreed that his offense met all of the elements of a violation of 18 U.S.C. § 922(g) , as they were explained to him by the Court. Gaines reserved the right to direct and collateral appeal by having the waiver of appeal sec tion stricken from the plea agreement. The government agreed not to pursue any further prosecution directly arising out of the charged offense and moved for a three

- level reduction in Gaines’s calculated offense level for acceptance of responsibility.

2 That guideline provides, “If reliable information indicates that the defendant’s criminal history category substantially over

- represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes, a d ownward departure may be warranted.” U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 4A1.3(b)(1).4

serious drug abuse problem, which he admitted, and that he had a supportive family. The
Court declined to have Gaines’s sentence run concurrently with his state sentence, 3 but it imposed a be low

- guidelines sentence of 84 months’ imprisonment to run consecutively with Gaines’s state sentence

. II. Discussion 4
Gaines filed this timely appeal of his sentence on June 14, 2012. Submitting that all potential issues for appeal are frivolous, Gaine s ’s counsel asks permission to
withdraw. Under Anders , appellate counsel may seek withdrawal after conducting a full and conscientious examination of all the proceedings and determining that there is no

non - frivolous basis for appeal. Anders , 386 U.S at 744. Counsel must accompany such a request with a brief identifying any issues that might support an appeal. Id

. We apply a two

- step review when Anders is invoked: first, we determine whether counsel has “adequately fulfilled” the requirements of Local Appellate Rule 109.2(a), 5

3 The District Court concluded that to run the sentence concurrently with the state sentence w ould almost eclipse the sentence that it imposed and that Ga ines would effectively avoid punishment for the violation of 18 U.S.C. § 922(g)

.

4 The District Court had juris diction pursuant to 18 U.S.C. § 3231. We have juris diction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

5 We implement Anders through our Local Appellate Rule 109.2(a): 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 served upon the appellant and the United 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 gran t5

and , second, we examine “ whether an independent review of the record presents any

non frivolous issues. ” United States v. Youla , 241 F.3d 296, 300 (3d Cir. 2001). When deciding whether counsel has “adequately fulfilled” the re quirements of Rule 109.2(a), we turn to the adequacy of counsel’s supporting brief. To be adequate, the brief must satisfy us that counsel has thoroughly examined the record in search of appealable issues and has explained why those issues are frivolous. Youla , 241 F.3d at 300. “Counsel need not raise and reject every possible claim,” but must still carefully
examine the record. Id . If the Anders brief is adequate, our review is limited to those issues implicated by the brief. Id . at 301. When the An ders brief is inadequate, we may expand our review to portions of the record implicated in the defendant’s pro se brief or other filings that provide “guidance concerning the issues [the defendant] wishes to raise on appeal.” Id

. Regardless of the adequa cy of the brief, we may affirm the conviction and sentence without appointing new counsel if we find, after reviewing the record, that the “frivolousness [of the appeal] is patent.” United States v. Coleman , 575 F.3d 316, 321 (3d Cir. 2009) (internal quot ation marks omitted).
The Anders brief here identifies three potentially appealable issue s : 6 (1) whether Gaines’s statements to pol ice should have been suppressed, (2) whether Gaines

counsel’s Anders motion, and dispose of the appeal without appointing new counsel. 3d Cir. L.A.R. 109.2(a).

6 Gaines was informed by this Court of his right to submit a pro se brief in support of his appeal but has failed to do so. Gaines’s counsel, however, has included in the Anders brief issues proposed by Gaines.6

voluntarily entered into the ple a agreement with the government, and (3) whether the
Distr ict Court imposed an unreasonable sentence and abused its sentencin g discretion

. Gaines ’s counsel examined the record and contends there is no merit to this appeal. We
are satisfied that the Anders brief is adequate and will confine our review to the issue s it

c ontains

. 7 The argument that Gaines’s statements to police should have been suppressed is
meritless

. After entering an unconditional guilty plea , as Gaines did here, a n appellee may not raise on appeal an y issues concerning pretr ial rulings. See Tollett v. Henderson , 411 U.S. 258, 267 (1973) (“ When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to t he deprivation of constitutional rights that occurred prior to the entry of the guilty plea .”). The District Court here informed Gaines at the change of plea hearing that he would be waivi ng the right to bring any pre trial motions by pleading guilty, whic h Gaines acknowledged. Gaines made no pretrial motions for suppression , nor did he make his guilty plea conditional. T hus , he is precluded from arguing the suppression issue , and it represents no basis for appeal

. Gaines’s contention that he did not vol untarily enter into the plea agreement with the government is likewise unfounded, as it contradicts his testimony to the District Court

7 Counsel’s Anders brief also discusses a possible jurisdictional objection, but that issue is patently frivolous because district courts have original jurisdiction over “ all offenses against the laws of the United States ” under 18 U.S.C. § 3231. Gaines was indicted for and pled guilty to a violation of 18 U.S.C. § 922 (g), a law of the United States

.7

at the change of plea hearing and is without support in the record

. A guilty plea is not constitutionally involuntary m erely because the government threatens to pursue more serious charges , as this is part of the “give

- and

- take” of the plea bargaining process.
Bordenkircher v

. Hayes , 434 U.S. 357, 363

- 64 (1978). Gaines testified at the change of plea hearing that he had not been threatened and had entered into the plea agreement of
his own free will

. Therefore, Gaines’s argument that his guilty plea was not voluntary is
frivolous. Finally, Gaines’s challenge to the reasonableness of his sentence is, like his other
argume nts, frivolous

. We review the sentencing decision of a district court for abuse of discretion, looking for procedural error and then examining the sentence for substantive
reasonableness. United States v. Negroni , 638 F.3d 434, 443 (3d Cir. 2011). The D istrict Court recognized the guidelines as advisory and imposed a sentence below the guidelines
range. It considered and dismissed Gaines’s motion for a departure from the guidelines
because it did not find that his criminal history was overstated. The C ourt thoroughly considered the § 3553(a) factors, and explained its analysis, considering the nature of the crime, the escalation of offenses committed by Gaines , his committing the present
offense promptly after an in absentia sentence for drug offenses i n state court , his personal history and circumstances, the sufficiency of the se ntence, the need for deterrence, and the need to avoid sentencing disparities. Thus, his sentence was procedurally reasonable. A sentence eight months below the minimum guid elines
sentence is certainly not outside the broad range of possible sentences, and it is therefore8

substantively reasonable as well

. Gaines’s sentencing argument is therefore patently
meritless

. III. Conclusion For the foregoing reasons, we will grant t he motion to withdraw and affirm the sentence imposed by the District Court.