1 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________ No. 12

- 2752

__________ UNITED STATES OF AMERICA

v. ROSE PIERCE,

Appellant

__________ On Appeal from the United States District Court for the District of New Jersey (D.C. Crim inal No. 1

- 11

- c r
- 00631

- 001) District Judge: Hon. Robert B. Kugler

__________ Submitted under Third Circuit LAR 34.1(a)

April 22, 2013 Before: JORDAN, ALDISERT and NYGAARD, Circuit Judges

.

( Filed : April 24, 2013 )

__________ OPINION OF THE COURT

__________ ALDISERT, Circuit Judge

. Rose Pierce appeals the judgment of the United States District Court for the
District of New Jer sey sentencing her to 42 month s’ imprisonment. Pierce ple a d ed guilty
to kno wingly and intentionally using a telephone to facilitate the distribution of oxycodone , in violation of 21 U.S.C. § 843(b). Pierce’s attorney (“Counsel”) has filed a2

motion to withdraw as counsel and a brief in support of that motion pursuant to Anders v.
California , 386 U.S. 73 8 (1967). After reviewing Counsel’s brief, the Government’s brief, Pierce ’s own pro se brief and the record , we conclude that there are no meritorious
issues for this Court to resolve . A ccordingly, we will grant Counsel’s motion to w ithdraw
and affirm the judgment of the District Court

. I.
Pierce was charged with possession with intent to distribute oxycodone, in violation of 21 U.S.C. § 841(a)(1) , and conspiring to distribute oxycodone, in violation of
21 U.S.C. § 846. P ursuant to a negotiated plea agreement, however, Pierce waived her right to be indicted by a grand jury and pleaded guilty to knowingly and intentionally using a tel ephone to facilitate distribution of oxycodone , in violation of 21 U.S.C. § 843(b)

. During the plea he aring , the District Court confirmed Pierce’s mental and physical competence to enter into the plea and her understanding of its sti pulations

. T he Court then accepted her plea. During the sentencing hearing, Counsel confirmed that Pierce had
no correction s or additions to make to the presentence investigation report (“PSR”). The
PSR included a table that converted the weight of oxyc odone to its marijuana equivalent
in order to obtain the a ppropriate base offense level.
The Court then considered the 18 U.S.C . § 3553 (a) factors , including Pierce’s age, physical disabilities, mental health, family circumst ances and likelihood of recidivism. It found that Pierce was at the “center of this drug ring” and “the most important player in
this whole drug ring.” App. 6 4. It sentenced Pierce to 42 months ’ imprisonment, six

mont hs below the statutory maximum. Pierce timely appealed

. 1

1 The District C ourt had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.3 II.
Under Anders v. California , 386 U.S. 738 (1967) , appointed c ounsel may seek to withdraw from representing a criminal defendant on appeal if he or she concludes that
there are no meritorious issues to appeal

. When seeking to withdraw , counsel must submit a brief identifying anything in the record that might arguably support an appeal.
See id

. at 744. This “ Anders brief ” must (1) “satisfy th e [C]ourt that counsel has thoroughly examined the record in search of appealable issues,” United States v. Youla , 241 F.3d 296, 300 (3d Cir. 2001) ; (2) identify any “issue[s] arguably supporting the appeal even though the appeal was wholly frivolous,” Smi th v. Robbins , 528 U.S. 259, 285 (2000); and (3) “explain . . . why the issues are frivolous,” United States v. Marvin , 211 F.3d 778, 780

- 781 (3d Cir. 2000); see also United States v. Coleman , 575 F.3d 316 (3d Cir. 2009).
This Court ’ s inquiry when counsel seeks to withdraw pursuant to Anders is
twofold. Coleman , 575 F.3d at 319. First, this Court must determine whether the Anders
brief satisfies Third Circuit Local Appellate Rule 109.2(a) 2 by evaluating whether or not
the brief is adequate. Id. Second, thi s C ourt must independent ly review t he record to determine whether it pr esents any nonfrivolous issues. Id. If t his Court is satisfied at step

one that the Anders brief is adequate , it is proper for this Court to use the brief itself as a

2 Rule 109.2(a) states: Where, upon review of the district court record, counsel is persuaded that the appeal presents no issue of even arguabl e merit, counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California , 386 U.S. 738 (1967)

. . . . If the panel agrees that the appeal is without merit, it will grant counsel’s Anders motion, and dispose 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 case to the calendar

. . . .4

guide during its r eview of the record. Youla , 241 F.3d at 301. Here, we are persuaded that Counsel thoroughly reviewed the record and that his brief adequately identifies and rejects the issues that might have been appeal ed

. III. Counsel correctly points out that any chall enge to Pierce’s guilty plea would be
frivolous. Rule 11(b) of the Federal Rules of Criminal Procedure sets forth a number of elements that must be satisfied in order for a District Court to accept a plea . Our review of the plea hearing transcript confirms that the District Court conducted a thorough plea colloquy that complied with Rule 11(b)’s requirements

. Additionally, w e agree with
Counsel that there is no merit to the specific argument identified in Counsel’s brief that
Pierce was forced to lie during her plea as a result of the method used to calculat e her
offense level. Not only did Pierce not make any admission regarding marijuana, she expressed that she understood that the weight of oxycodone would be converted to its marijuana equivalent in order to obtain the appropriate base offense level

. IV. We agree also with Counsel that a ny challenges to Pierce’s sentencing would be
frivolous. We review all sentences for procedural and substantive reasonableness. See
United States v. Lessner , 498 F.3d 185, 203 (3d Cir. 2007). Procedurally, a district c ourt must comply with Rule 32 of the Federal Rules of Criminal Procedure and the three

- step sentencing process set forth in Gall v. United States , 552 U.S. 38, 49

- 50 (2007)

. 3 Upon our independent review of the record, we conclude that there are no nonfrivo lous issues to appeal regarding Pierce’s sentencing proceedings

.

3 Gall requires a district court to (1) correctly calculate the advisory Guidelines range, (2) rule on any departure motions, and (3) evaluate the § 3553(a) factors and explain the chosen sentence in a manner that allows for meaningful appellate review of the substantive reasonableness of the ultimate sentence.5

Rule 32(f)(1) of the Federal Rules of Criminal Procedure requires that parties have 14 days after receiving the PSR to state in writ ing any obje ction they have. Pierce “had sufficient opportunity to review the presentence investigation report” and did not have
additions or corrections. App. 56. Because Pierce did not timely object to the report, we reject as frivolous any contention that the Di str ict Court erred in relying on the PSR for its findings. Additionally, the District Court fully complied with the Supreme Court’s three

step sentencing process by correctly calculating the advisory Guidelines range, ruling on departure motions, and examini ng the § 3553(a) factors

. The Court determined Pierce’s
base offense level was 29 after a three

- level reduction for acceptance of responsibility
and an additional two

- level safety

- valve adjustment. It thoroughly balanced Pierce’s
health and low likelihood of recidivism against the seriousness of her crime. It was also clear in stating that Pierce had a lready received a “tremendous break” as a result of a 48

- month statutory maximum

. Ultimately the District Court sentenced Pierce to 42 month s’ imprisonment, s ix months less than the statutory maximum. Accordingly , t here was no procedural error in the District Court’s sentencing

. We con clude also that there are no nonfrivo lous issues to appeal regarding the
substantive reasonableness of Pierce’s sentence. P ie rc e’s 42

- month sentence is certainly
within the broad range of possible sentences and is below the statutory maximum

. As to the specific argument identified and rejected in Counsel’s brief that Pierce’s sentence is
unreasonable because it created an unwarran ted sentence disparity among defendants , we
agree that it is without merit . In support of her argument, Pierce erroneously rel ies on 18
U.S.C. § 3553(a)(6) 4 to argue that that the District Court erred by failing to avoid a n

4 18 U.S.C. § 3553(a)(6) states that a court, in determining the particular sentence to impose, shall consider “ the need to avoid unwarranted sentence disparities among6

unwarranted sentence disparity b etween her and her son, a co

- participant in the drug distribution operation, who received a lesser sentence. We have conclude d , however,

“ that Congress’s primary goal in enacting § 3553(a)(6) was to promote national uniformity in sentencing rather than uni formity among co
- defendants i n the same case.”
United States v. Parker , 462 F.3d 273, 277 (3d Cir. 2006)

. Furthermore , the District Court
determined that the sentencing disparity was warranted because Pierce was the most important player in the drug ring. Even if Pierce was able to carry the burden of show ing that she was similarly situated to her son, the District Court’s decision to impose on her a
heavier sentence clearly is not an abuse of discretion.
* * * * *
We have considered all additional argumen ts advanced and conclude that no
further discussion is needed. W e will grant Counsel’s motion to withdraw and affirm the judgment of the District Court

. Moreover, we conclude pursuant to Third Circuit Local Appellate Rule 109.2(b) that no issues of legal m erit exist for purposes of filing a writ of certiorari in the Supreme Court.

defendants with similar reco rds who have been found guilty of similar conduct.”