NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 12

- 3976

____________ UNITED STATES OF AMERICA

v. ARCHIE PORTER CARBAUGH, Appellant

____________ O n Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1

- 11

- cr - 00354

- 001 ) District Judge: Honorable William W. Caldwell

____________ Submitted Pursuant to Third Circuit LAR 34.1(a)

June 28, 2013 Before: FUENTES , FISHER and CHAGARES , Circuit Judges

.

(Filed: August 13, 20 1 3 )

____________ OPINION

____________ FISHER, Circuit Judge

. Archie Carbaugh appeals from his conviction and sentence for possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. T he U.S. District Court for the Middle District of Pennsylvania sentenced Carbaugh to 36 months’ imprisonment followed by three years of supervised release aft er he pled guilty to the2

offense

. Carbaugh’s defense counse l has filed a motion pursuant to Anders v. California , 38 6 U.S. 738 (1967), requesting leave to withdraw and asserting that Carbaugh has no nonfrivolous arguments on appeal. For the following reasons, we will grant counsel’s
motion to withdraw , and we wil l affirm

. I. We write principally for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis. In 2004, Carbaugh was convicted of a domestic v iolence m isdemeanor in Pennsylvania state court . As a result of this conviction, Carbaugh was prohibited from possessing firearms. In March 2011, Carbaugh was sentenced to probation for an unrelated traffic offense in the same court. Thereafter, when the county probation officer visited Carbaug h, she observed a number of firearms inside his home. Because the probation officer was aware of Carbaugh’s previous conviction, she contacted the Pennsylvania State Police , who obtained a search warrant for his ho me. On March 25, 2011, the police executed the search warrant and recovered 112 firearms . One of the3

firearms was an unregistered .22 caliber rifle having a barrel le ngth of 6 1⁄4 inches and an overall length of 13 inches. 1 On December 14, 2011, a grand jury retur ned a two

- count indict ment charging Carbaugh with possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5 841, 5861(d), and 5871, and possession of a firearm by a prohib ited person, in violation of
18 U.S.C. § 922(g)(9). On March 26, 20 12, Ca rbaugh entered into an agree ment in which he pled guilty to Count One of the indictment

– possession of an unregistered firearm. The parties further stipulated pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) that the applicable sentencing range would be 36 to 60 months’ imprisonment. Without the plea agreement, Carbaugh would have potentially faced a Sentencing Guidelines range of 84 to 105 months’ imprisonment. On April 17, 2012, the District Court conducted a plea colloquy in which it explain ed to Carbaugh that he had a right to plead not guilty, a right to a jury trial, a right to appeal (directly and collaterally), and that he would give up his rights to trial and appeal if he pled guilty. After the government presented its evidence, Carbau gh agreed to the facts. When the District Court asked Carbaugh how he wished to plead to Count One of the indictment, he responded, “Guilty.” App. at 53.

1 Federal law d efines a “firearm” to inclu de “a rifle having a barrel or barrels of less than 16 inches in length,” and “a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length

. ” 26 U.S.C. § 5845(a) (3) , (4)

. Individuals possessi ng “firearms” must register t hem in the National Firearms Regist ration and Transfer Record. 26 U. S.C. § 5861(d)

.4

On September 27, 2012, the District Court sentenced Carbaugh to 36 months’ imprisonment followed by three years of supervised release. Carbaugh then filed a timely notice of appeal.
II. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. “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).” Third Circuit L.A.R. 109.2 (2011); see also United States v. Youla , 241 F.3d 296, 300 (3d Cir. 2001). When counsel submits an Anders brief, we must determine “(1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an independent review of the record presents any nonfrivolous issues.” Youla , 241 F. 3d at 300.
III. Counsel’s Anders brief identifies three potential issues on appeal: (1) whether there was sufficient evidence in the record to support a guilty plea; (2) whether there was a knowing and voluntary waiver of appellate rights ; and (3) whethe r the potential shortcomings in the plea colloquy, including the District Court’s failure to address Carbaugh’s right to representation by counsel at trial, affected Carbaugh’s substantial5

rights. Counsel asserts that Carbaugh has no nonfrivolous argument s pertaining to these issues. We are satisfied that counsel has sufficiently reviewed the record for appealable issues, and we agree that there are no nonfrivolous issues on appeal. With respect to the sufficiency of the evidence, the record shows that th e evidence outlined in the plea colloquy co vered all of the elements of the possession of an unregistered firearm offense: the police found in Carbaugh’s home a .22 caliber rifle with a barrel length of 6 1⁄4 inches and an overall length of 13 inches; the ch aracteristics of the rifle indicate that it was a firearm subject to the registration requirements of the National Firearms Act, 26 U.S.C. §§ 5801

- 5872; and Carbaugh did not register the rifle in the National Firearms Registration and Transfer Record. It i s also evident that Carbaugh knowingly and voluntarily waived his appellate rights. During the plea colloquy, the District Court addressed Carbaugh, explained that he had a right to a jury trial, a right to plead not guilty, and that he would be waiving h is appellate rights as a term of his plea agreement. Counsel for Carbaugh also took time to address the waiver of these rights with Carbaugh on the record. Carbaugh then agreed to the appellate waiver. Finally, although the District Court may have erred under Rule 11(b)(1)(D) by failing to inform Carbaugh during the plea colloquy that he had a right to be represented by counsel at trial and at every other stage of the proceeding, this error was not brought to6

the District Court’s attention. When an error is raised for the first time on appeal, we review for plain error and ask whether the error affected the defendant’s “substantial rights.” Fed. R. Crim. P. 52(b). A Rule 11 error affects substantial rights when the defendant can “show a reasonable proba bility that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez , 542 U.S. 74, 83 (2004). In essence, the defendant must show “that the probability of a different result is sufficient to
undermine confidence in the outcome of the proceeding.” Id. (internal quotation marks omitted). Here, we are confident that the outcome of the proceeding was not affected by the Rule 11 error. When the record reveals significant evidence of guilt, as this record does, “one can fair ly ask a defendant seeking to withdraw his plea what he might ever have thought he could gain by going to trial.” Id. at 85. Given the incriminating evidence
pr esented by the government , the District Court’s almost complete recitation of Carbaugh’s perti nent rights, the fact that Carbaugh was represented by counsel during the hearing, and the fact that Carbaugh faced a sentencing range of 84 to 105 months’ imprisonment if he did not enter into the agreement , we cannot see how the District Court’s oversigh t could have had any effect on Carbaugh’s assessment of his strategic position.7 IV. We will grant counsel’s motion to withdraw , and we will affirm the District Court’s judgment of conviction and sentencing order.