2013 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

12-13-2013 

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D ock e t N o . 13-1355

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w . v i l l a no v a . e du/thir dc ir c uit_2013/1583NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______________ No s . 13

- 1355 & 13

- 1356

______________ UNITED STATES OF AME RICA

v. JA IM E LYNN SNYDER a/k/a Jamie Lynn Sny d er

JAIME LYNN SNYDER,

Appellant

__________ _____ Appeal from the United States District Court for the District of Delaware (No s . 1

- 11

- cr - 00097

- 00 1 and 1

- 12

- cr - 00052

- 001 ) District Judge: Honorable Sue L. Robinson

______________ Submitted Under Third Circuit LAR 34.1(a)

Decemb er 9 , 2013 Before: McKEE, Chief Judg e, FUENTES and CHAGARES Circuit Judges

(Opinion Filed : December 13, 2013 )

______________ OPINION

______________2

MCKEE, Chief Judge Defendant Jaime Lynn Snyder appeals her judgment of conviction , and her

co unsel has submitted a brief and motion to withdraw pursuant to Anders v. California , 386 U.S. 738 (1967). For the reasons that follow, we will grant counsel’s motion to withdraw and affirm the conviction and sentence

. 1
I. Because we write primarily for th e parties who are familiar with this case, we need
not recite the procedural history or underlying facts. Snyder ple d guilty to one count of copyright infringement in violation of 17 U.S.C. § 506(a)(1)(A) and 18 U.S.C. § 2319(b)(1) , and she pled guilty to one count of identity theft in violation of 18 U.S.C. §§ 1028(a)(7) and (b)(1)(D) in a consolidated, but unrelated case

. She was sentenced to forty

- six months’ imprisonment on both counts to be served concurrently, followed by a consecutive sentence of t welve months’ imprisonment pursuant to 18 U.S.C. § 3147. She appeals and her counsel seeks to withdraw pursuant to Anders

. 2
A .

“ Under Anders v. California, 386 U.S. 738 (1967), counsel may seek to withdraw from representing an indigent criminal defendan t on appeal if there are no nonfrivolous issues to appeal .” Simon v. Gov't of the V.I. , 679 F.3d 109, 114 (3d Cir. 2012) . The

1 The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdic tion pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. 2 Defendant did not exercise her option to file a pro se brief in response. See 3d Cir. L.A.R. 109.2(a) (2011).3

request to withdraw “ must , however, be accompanied by a brief referring to anything in the record that might arguably support th e appeal. ” Anders , 386 U.S. at 744; see also 3d Cir. L.A.R. 109.2(a) (2011)

. When counsel submits an Anders brief, this Court undertakes a two part inquiry pursuant to L.A.R. 109.2(a) : “‘ (1) whethe r counsel adequately fulfilled [ Third Circu it Local Appel late Rule 109.2's] requirements; and (2) whether an independent review of the record presents any nonfrivolous issues. ’ ” United States v. Coleman , 575 F.3d 316, 319 (3d Cir. 2009) (quoting United States v. Youla , 241 F.3d 296, 300 (3d Cir. 2001)) (alterat ions own)

. To adhere to L.A.R. 109.2 (a) , counsel is required “(1) to satisfy the court that counsel has thoroughly examined the record in search of appealable issues, and (2) to explain why the issues are frivolous .” Youla , 241 F.3d at 300 (citing Unite d States v.
Marvin , 211 F.3d 778, 780 (3d Cir. 2000) ). Although we exercise plenary review to determine whether any nonfrivolous grounds for appeal exist, Simon , 679 F.3d at 114, “[w] here the Anders brief initially appears adequate on its face, ” our revie w of the record is guided “ by the Anders brief itself.” Youla , 241 F.3d at 301. Upon thorough review of counsel’s Anders brief, we conclude that there are “sufficient indicia that [counsel] thoroughly searched the record and the law in service of [her] client so that we might confidently consider only those objections raised .” Youla , 241 F.3d at 301 ( quoting Marvin , 211 F.3d at 781). Counsel’s brief evinces a clear command of the record, and ultimately provides a clear explanation as to why controllin g law renders frivolous the single issue identified. Th at issue is whether Snyder ’s sentence is procedurally and substantively reasonable.4 B .

“ We review the procedural and substantive reasonableness of the sentence for abuse of discretion .” United States v. Kluger , 722 F.3d 549, 566 (3d Cir. 2013)

. District

c ourts “ follow a three

- step sentencing process.” Id. Courts 1) “must continue to calculate a defendant's Guidelines 3 sentence precisely as they would have before Booker [, 543 U.S. 220 (2005)],” 2) “ must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit's pre

- Booker case law, which continues to have advi sory force ,” and 3) must “ exercise their discretion by considering the relevant [18 U.S.C.] § 3553(a) factors . .

. in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines .” Kluger , 722 F.3d at 56 6 (citations and internal quotations omitted). A sentence is procedurally reasonable if , for instance, the Guidelines range is properly calculat ed and treated as advisory, the § 3553(a) factors were considered, the sentence was not based on clearly erron eous factual findings, and the chosen sentence was adequately explained. United States v. Tomko , 562 F.3d 558, 567 (3d Cir. 2009) (en banc) (citation omitted). “[I] f the district court's sentence is procedurally sound, we will affirm it unless no reason able sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided .” Id. at 568.

3 U.S. Sentencing Guidelines Manual §§ 1B1.1

– 8F1.1 (2012) [hereinafter “Guidelines” or “U.S.S.G.”].5

The applicable Guideline range was seventy to eighty

- seven months. Snyder objected to the calculation, ar guing that the stipulated loss figure of $971,935.10 was appropriate to use for the offense level enhancemen t calculation under U.S.S.G. § 2B1.1(b)(1)

. The District Court resolved the objection in Snyder ’s favor by util izing the plea agreement figure. Se e , e.g. , United States v. Tilley , 786 F. Supp. 2d 862, 867

. The resulting offense level of twenty

- one was correctly calculated , resulting in a Guidelines range of forty

- six to fifty

- seven months. See U.S.S.G. § 2B1.1(b)(1)(H) & ch. 5, pt. A S entencing Tab le.
T he District Court explained that it considered the Guidelines’ “advisory”
sentence and the § 3553(a) factors

. T he court thoroughly explored Snyder’s personal history and characteristics , and further explained that the record before it informed its consideration of the remaining factors. See United States v. Clark , 726 F.3d 496, 502 (3d Cir. 2013) (“[A] district court need not discuss and make findings as to each of the § 3553(a) factors so long as the record makes clear that the co urt has taken th em into account.” (citations and quotations omitted)). The court properly added a twelve month
sentenc ing enhancement to be served consecutively for the offense committed while on release

. See 18 U.S.C. § 3147. The court then concluded that it had no re ason to depart from the advisory sentence. In sum , we are satisfied the sentence is procedurally reasonable. Moreover, since the court appropriately considered the § 3553(a) factors and the resulting sentence is at the bottom end of the Guidelines rang e, we are also satisfied that6

Snyder’s sentence is substantively reasonable. See id. at 568. Thus, as defense counsel suggests, pursuing that issue would be frivolous.
II. Accordingly, because no nonfrivolous grounds for appeal exist , counsel fulfilled h er obligation under Anders and we will therefore grant her motion to withdraw. For the

same reason , we will affirm the judgment of the District Court.