NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 15-2491

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UNITED STATES OF AMERICA

v.

CHARLES NAVARRO,

Appellant

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania 

(D.C. No. 2-04-cr-00189-001)

District Judge: Honorable R. Barclay Surrick

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Submitted Under Third Circuit L.A.R. 34.1(a)

July 14, 2016

Before: FUENTES, SHWARTZ, and BARRY, Circuit Judges

(Opinion Filed: August 25, 2016)

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OPINION

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FUENTES, Circuit Judge.

Charles Navarro appeals his 24-month sentence for violating the terms of his 

supervised release. His counsel has filed a motion to withdraw pursuant to Anders v.

California, 386 U.S. 738 (1967). For the following reasons, we will grant counsel’s 

motion and affirm the District Court’s sentence.

 

 The Honorable Julio M. Fuentes assumed senior status on July 18, 2016.

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

I.

In June 2014, while on federal supervised release, Navarro was arrested on various 

state offenses. He was detained in state prison until May 28, 2015, at which point he was 

convicted and sentenced in state court for driving under the influence, fleeing or 

attempting to elude an officer, and possession of a controlled substance. Navarro was 

granted immediate parole for time served. He was then transferred to federal custody 

pursuant to the petition for revocation of supervised release filed by his probation officer

shortly after his arrest. 

Navarro made his initial appearance in federal court on June 4, 2015, where the 

District Court ordered him detained until his revocation hearing on June 11, 2015. At the 

hearing, Navarro stipulated to the violation of his supervised release, and the District 

Court sentenced him to 24 months’ imprisonment followed by 12 months of supervised 

release. Navarro did not object at the hearing but he now appeals his sentence. His 

counsel has filed an Anders motion to withdraw, after which Navarro filed a pro se brief. 

The Government has submitted a brief in support of counsel’s Anders motion.

II.1

We begin our review by considering whether counsel’s brief fulfills the Anders 

requirements and whether our own independent review of the record reveals any 

nonfrivolous issues for appeal.2 “The duties of counsel when preparing an Anders brief 

are (1) to satisfy the court that counsel has thoroughly examined the record in search of 

 

1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary review under Anders to 

determine whether there are any non-frivolous issues for review. Simon v. Gov’t of 

Virgin Islands, 679 F.3d 109, 114 (3d Cir. 2012).

2 United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).
3

appealable issues, and (2) to explain why the issues are frivolous.”3 “[W]e confine our 

scrutiny to those portions of the record identified by an adequate Anders brief . . . [and] 

those issues raised in Appellant’s pro se brief.”4 

The briefs identify the following four issues: (1) whether Navarro’s revocation 

proceedings were properly initiated; (2) whether the revocation proceedings complied 

with Federal Rule of Civil Procedure 32.1 and due process; (3) whether the sentence 

imposed was reasonable; and (4) whether Navarro should have received credit on his 

federal sentence for time served on his state sentence. We agree with counsel that these 

grounds for appeal are meritless.

First, there is no question that Navarro’s revocation proceedings were properly 

initiated. Navarro’s probation officer initiated the proceeding by submitting a petition for 

revocation of supervised release with the District Court. The petition requested that the 

District Court issue an arrest warrant in the form of a detainer for Navarro on the basis 

that his state charges violated the terms and conditions of his supervised release. The 

District Court issued the warrant and Navarro was brought in for his initial appearance

soon after he was released on his state sentence. This method of initiating revocation 

proceedings is proper.5 

Second, Navarro’s revocation proceedings complied with both Federal Rule of 

Criminal Procedure 32.1 and due process. Navarro claims that he should have been 

transferred to federal custody immediately after the probation office filed the revocation

 

3

Id.

4

Id. at 301.

5 See United States v. Ahlemeier, 391 F.3d 915, 923-34 (8th Cir. 2004) (explaining that 

every circuit to have addressed the issue has held that probation officers may properly 

initiate revocation proceedings by petitioning the court)
4

petition, rather than after his state charges were resolved. Pro se Br. 7. But delaying 

Navarro’s revocation hearing until after the resolution of his state charges was

reasonable, especially since adjudication of the state charges was relevant to the 

revocation proceedings.

6

 Navarro’s initial appearance took place one week after he was 

released on his state sentence, and his revocation hearing took place the following week. 

Thus, any argument that Navarro did not receive a prompt hearing is without merit. 

Moreover, any assertion by Navarro of insufficiency of the evidence to revoke his 

supervised release is without merit since he stipulated to the violation. App. 30.

Navarro also seems to argue that his due process rights were violated when he was 

unable to make bail in state court due to the revocation petition alleging a Grade A 

violation based on the pending state charges. Pro se Br. 7-8. Navarro has not shown how 

or if the grading of his revocation petition impacted his bail. Indeed, the petition was not 

drafted until eleven days after bail was set in state court, and thus could not have 

prevented him from making bail. See App. 15-16. In any event, at the time the 

revocation petition was filed, Navarro was facing a Grade A violation.

Third, Navarro’s sentence was procedurally and substantively reasonable.7 As 

Navarro stipulated to violating his supervised release by committing a Class C felony, the 

District Court was permitted to sentence him to up to 24 months’ incarceration, and 

impose 12 months of supervised release.

8

 The District Court gave meaningful review to 

18 U.S.C. § 3553(a) factors, and it was permitted to take into consideration the gravity of 

 

6 See United States v. Poellnitz, 372 F.3d 562, 571 (3d Cir. 2004).

7 See United States v. Doe, 617 F.3d 766, 769 (3d Cir. 2010) (“This Court reviews the 

procedural and substantive reasonableness of a district court’s sentence upon revocation 

of supervised release for abuse of discretion.”).

8 See 18 U.S.C. § 924(a)(2); id. § 3583(e)(3), (h); id. § 3559(a)(3).
5

the underlying state offense that led to the violation, as well as Navarro’s extensive 

criminal history. 9 Thus Navarro’s argument that the District Court improperly 

“aggregat[ed]” his criminal conduct, Pro se Br. 9, is without merit. Indeed, the statutes 

governing sentencing for violations of supervised release mandate that the District Court 

consider the history and characteristics of the defendant.10 The District Court concluded 

that, given Navarro’s extensive criminal history and demonstrated recidivist behavior, it 

could see no reason why it would not impose the maximum sentence allowed. We cannot 

disagree.

Navarro’s claim that the District Court was required to conduct a mental health 

evaluation before sentencing, Pro se Br. 11, is equally without merit. It is unclear the 

exact rule Navarro relies upon, but it is clear that Navarro never requested a mental health 

evaluation. The District Court recognized that Navarro may have substance abuse 

problems, and accordingly recommended that Navarro undergo psychological, 

psychiatric, and addiction testing while in prison and receive appropriate treatment. App. 

39. 

Fourth, credit determinations are made by the Bureau of Prisons, not the District 

Court.11 In any event, it appears that Navarro was not entitled to credit on his federal 

sentence for the time he served on his state sentence. His argument to the contrary would 

amount to double credit, which is explicitly prohibited by 18 U.S.C. § 3585(b).

12

 

9 See United States v. Young, 634 F.3d 233, 238-39 (3d Cir. 2011).

10 18 U.S.C. § 3583(e) (requiring consideration of 18 U.S.C. § 3553(a)(1)).

11 See United States v. Wilson, 503 U.S. 329, 331-33 (1992).

12 See 18 U.S.C. § 3585(b) (“A defendant shall be given credit toward the service of a 

term of imprisonment for any time he spent in official detention prior to the date the 

sentence commences . . . that has not been credited against another sentence.”) 

(emphasis added).
6

III.

Counsel’s brief satisfies the requirements of Anders, and Navarro’s pro se brief 

fails to raise any non-frivolous issues for appellate review.13 Because our independent 

review of the record confirms that there are no non-frivolous issues for appeal, we will 

grant counsel’s motion to withdraw and affirm the District Court’s sentence.14

 

13 Navarro also argues that he received ineffective assistance of counsel. Pro se Br. 20. 

Ineffective assistance of counsel claims are generally improper on direct appeal. See 

Gov’t of Virgin Islands v. Vanterpool, 767 F.3d 157, 163 (3d Cir. 2014). Such a claim 

may only be brought on direct appeal where there is either a sufficient record to fully 

assess counsel’s effectiveness or where no possibility of collateral review exists. Id. at 

164. Neither is true in this case. Therefore, Navarro has not presented a non-frivolous 

argument.

14 Appellant is hereby advised that under the Criminal Justice Act, counsel is not 

obligated to file a petition for rehearing in this Court or a petition for writ of certiorari in 

the United States Supreme Court. See also L.A.R. 35.4; 109.2(b). If Appellant wishes to 

pursue these avenues, he must do so pro se. Appellant should note that a petition for 

rehearing en banc must be filed within 14 days of the entry of judgment; if that time has 

passed, Appellant may promptly file a motion to enlarge the time for such filing. 

Counsel shall timely send a copy of this Opinion to the Appellant.