                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                       No. 18-3467
                                     ______________

                            UNITED STATES OF AMERICA

                                             v.

                                    XIAO XIA ZHAO,
                                       a/k/a Kelly,
                                           Appellant
                                     ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF NEW JERSEY
                   (D.C. Crim. Action No. 2:18-cr-00311-001)
                     District Judge: Honorable Jose L. Linares
                                 ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    June 25, 2019
                                  ______________

 Before: SMITH, Chief Judge, CHAGARES, and GREENAWAY, JR., Circuit Judges.

                              (Opinion Filed: July 17, 2019)

                                     ______________

                                        OPINION*
                                     ______________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.

       Xiao Xia Zhao appeals her judgment of conviction. Her counsel filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that no nonfrivolous

issues exist for appeal and seeking to withdraw as counsel. For the reasons set forth

below, we will grant counsel’s motion to withdraw and affirm the judgment of

conviction.

                                      I. Background

       On May 23, 2018, Zhao pled guilty to a one count information charging her with

trafficking in counterfeit goods from November 2013 to February 2017. Zhao’s role in

the trafficking scheme was minor, consisting only of receiving Importer Security Filing

(ISF) numbers from one individual and then providing those ISF numbers to another

individual. By providing that information, she assisted in ensuring the contents of the

containers identified by the ISF numbers bypassed inspection by customs authorities. In

the plea agreement, Zhao and the government agreed that the value of the counterfeit

goods was more than $250,000 but less than $550,000. Zhao’s plea agreement included a

limited appellate waiver: if the court agreed to this factual stipulation, both she and the

government agreed to not appeal or collaterally attack the court’s decision. Otherwise,

both parties reserved their appeal rights.

       At the sentencing hearing, the District Court calculated Zhao’s total offense level

under the Sentencing Guidelines to be 19, with a criminal history category of I. That

offense level produced an advisory sentencing range of 30 to 37 months of imprisonment.
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After hearing arguments from both defense counsel and the government with respect to

the factors set forth in 18 U.S.C. § 3553(a), the District Court varied downward from the

advisory sentencing range, and imposed a sentence of 18 months of incarceration,

followed by three years of supervised release. Zhao filed a timely notice of appeal.

                                     II. Jurisdiction

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

                                III. Standard of Review

       “In [Anders v. California], the Supreme Court explained the general duties of a

lawyer representing an indigent criminal defendant on appeal when the lawyer seeks

leave to withdraw from continued representation on the grounds that there are no

nonfrivolous issues to appeal.” United States v. Marvin, 211 F.3d 778, 779 (3d Cir.

2000). The attorney must always “support his client’s appeal to the best of his ability.”

Anders, 386 U.S. at 744. If, however, “counsel finds his case to be wholly frivolous,

after a conscientious examination of it, he should so advise the court and request

permission to withdraw.” Id.

       To withdraw, counsel must “satisfy the court that he or she has thoroughly scoured

the record in search of appealable issues,” and “explain why the issues are frivolous.”

Marvin, 211 F.3d at 780 (citation omitted). Hence, this Court’s inquiry when considering

a lawyer’s Anders brief is two-fold; we must determine: “(1) whether counsel adequately

fulfilled [Third Circuit Local Appellate Rule 109.2(a)’s] requirements; and (2) whether
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an independent review of the record presents any nonfrivolous issues.” United States v.

Youla, 241 F.3d 296, 300 (3d Cir. 2001) (citations omitted). In accordance with 3d Cir.

L.A.R. 109.2, if an appeal is judged to be wholly frivolous, this Court must “grant trial

counsel’s Anders motion, and dispose of the appeal without appointing new counsel.” Id.

(quoting 3d Cir. L.A.R. 109.2(a) (internal quotation marks omitted)).

       If counsel fails to thoroughly address any possible issues on appeal, we are not

always required to appoint new counsel. “‘[I]n those cases in which frivolousness is

patent,’ we will not appoint new counsel even if an Anders brief is insufficient to

discharge current counsel’s obligations to his or her client and this court.” United States

v. Coleman, 575 F.3d 316, 321 (3d Cir. 2009) (quoting Marvin, 211 F.3d at 781).

                                       IV. Analysis

       As we have previously stated, “[i]t is well established that a criminal defendant’s

unconditional, knowing and voluntary plea of guilty waives all non-jurisdictional issues.”

Washington v. Sobina, 475 F.3d 162, 165 (3d Cir. 2007) (citations omitted). Here, the

District Court clearly had jurisdiction pursuant to 18 U.S.C. § 3231. No appealable issue

exists with respect to jurisdiction.

       A criminal defendant’s guilty plea is considered valid if entered “knowing[ly],

voluntar[ily] and intelligent[ly].” United States v. Tidwell, 521 F.3d 236, 251 (3d Cir.

2008). To ensure that a plea is knowing and voluntary, the district “court must address

the defendant personally in open court,” Fed. R. Crim. P. 11(b)(2), advise defendant of

the consequences of his or her plea, and ensure that defendant understands them. United
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States v. Schweitzer, 454 F.3d 197, 202–03 (3d Cir. 2006) (citing Boykin v. Alabama, 395

U.S. 238 (1969) and Fed. R. Crim. P. 11(b)).

       To challenge the validity of her guilty plea, Zhao would have had to demonstrate

that the requirements of Rule 11 of the Federal Rules of Criminal Procedure and

the constitutional requirements of Boykin had not been satisfied. Counsel found no basis

for the argument that Zhao’s plea was unknowing, involuntary, or unintelligent. Our

review of the guilty plea colloquy reveals that the District Court followed all the

requirements of Federal Rule of Criminal Procedure 11. The District Court ensured that

Zhao was competent to enter her plea, understood the rights she was giving up, and was

entering the plea voluntarily. Further, the District Court verified the factual basis for the

plea. We therefore agree with counsel’s conclusion that the record shows Zhao’s plea

was knowingly and voluntarily made.

       With respect to the sentence, “[o]ur appellate review proceeds in two stages.”

United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). We begin by:

       ensur[ing] that the district court committed no significant procedural
       error, such as failing to calculate (or improperly calculating) the
       Guidelines range, treating the Guidelines as mandatory, failing to
       consider the § 3553(a) factors, selecting a sentence based on clearly
       erroneous facts, or failing to adequately explain the chosen
       sentence—including an explanation for any deviation from the
       Guidelines range.

Gall v. United States, 552 U.S. 38, 51 (2007). “If a district court’s procedure passes

muster, ‘we then, at stage two, consider its substantive reasonableness.’” Tomko, 562

F.3d at 567 (quoting United States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008)).
                                              5
That is, “if the district court’s sentence is procedurally sound, we will affirm it unless no

reasonable sentencing court would have imposed the same sentence on that particular

defendant for the reasons the district court provided.” Id. at 568.

       Here, the District Court followed the correct procedure, by first calculating the

Guidelines range, then listening to counsels’ arguments, and finally considering the

§ 3553(a) factors. In fact, after hearing defense counsel’s arguments in favor of a

downward variance, the government noted that it “would not object to a slight variance in

this case.” App. 95. After reviewing the record here, we conclude that the sentence was

substantively reasonable.

                                       V. Conclusion

       Because we agree with counsel that no nonfrivolous issues exist for appeal, we

will grant the motion to withdraw and affirm the judgment of conviction of the District

Court. Pursuant to 3d Cir. L.A.R. 109.2(b), counsel is also relieved of the obligation to

file a writ of certiorari in the Supreme Court.




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