                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 08-4151


                           UNITED STATES OF AMERICA

                                           v.

                                  BRUCE WILCOX,
                                           Appellant.


                    On Appeal from the United States District Court
                             for the District of New Jersey
                        (D.N.J. Crim. No. 3-07-cr-00525-002)
                      District Judge: Honorable Mary L. Cooper


                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                on January 26, 2010

      Before: FUENTES and FISHER, Circuit Judges, and *KANE, District Judge

                            (Opinion Filed: March 29, 2010)



                              OPINION OF THE COURT




* Honorable Yvette Kane, Chief Judge of the United States District Court for the Middle
District of Pennsylvania, sitting by designation


                                           1
FUENTES, Circuit Judge:

       Appellant Bruce Wilcox pled guilty to possessing heroin with an intent to

distribute. Wilcox’s counsel, John M. Holliday (“Counsel”), has moved to withdraw his

representation pursuant to Anders v. California, 386 U.S. 738 (1967). For the following

reasons, we will grant Counsel’s motion and affirm Wilcox’s conviction and sentence.1

                                             I.

       Because we write primarily for the parties, we set forth only those facts necessary

to our analysis.

       Wilcox pled guilty to possessing with an intent to distribute a quantity of a mixture

containing heroin in violation of 18 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(i). The guilty

plea stemmed from a December 14, 2006 drug transaction, during which Wilcox and his

co-defendant purchased approximately 120 bricks of heroin in New York City and

transported the narcotics to New Jersey using the New Jersey Transit System. Law

enforcement intercepted telephone conversations between Wilcox and other individuals

discussing purchasing the heroin and transporting the heroin across state lines. Wilcox

thereafter traveled to New York, purchased the heroin and returned to New Jersey with

Mercedes, a female companion. When law enforcement approached Mercedes, she

consented to a pat down and 110 bricks of heroin were seized. The net weight of the

heroin was 296.03 grams.


       1
          The District Court had jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291.

                                             2
       Wilcox pled guilty to Count Two of the indictment pursuant to a plea agreement in

which the Government agreed to dismiss the indictment’s conspiracy count. In his plea,

Wilcox stipulated that the weight of the heroin was 296.03 grams. Wilcox was sentenced

by the District Court on October 1, 2008. Pursuant to U.S.S.G. § 4B1.1(b), the District

Court adjudicated Wilcox a career offender and placed him in criminal history category

VI with a base offense level of 34, which was reduced to 31 for his acceptance of

responsibility. As such, Wilcox’s Guideline range was 188 to 235 months imprisonment.

Exercising its discretion, the District Court denied Wilcox’s motion for a downward

departure based on compelling childhood circumstances, which included growing up in a

home where adults regularly engaged in drug trafficking. The District Court sentenced

Wilcox to 188 months imprisonment and five years of supervised release.

       After reviewing the record, Counsel concluded that there are no non-frivolous

issues Wilcox can raise on appeal. Therefore, he filed an Anders motion to withdraw as

counsel with a supporting brief. Although afforded an opportunity to do so, Wilcox did

not file a brief.



                                            II.

       Under L.A.R. 109.2 (2008), a counsel may move to withdraw representation where

he or she is “persuaded that the appeal presents no issue of even arguable merit.” This

motion must be supported by an Anders brief which: (1) shows that a counsel “thoroughly

scoured the record in search of appealable issues;” and (2) “explain[s] why the issues are

                                             3
frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000). We then inquire

as to “(1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an

independent review of the record presents any nonfrivolous issues.” United States v.

Youla, 241 F.3d 296, 300 (3d Cir. 2001). In an Anders brief, a counsel’s inquiry into

appealable issues demands a level of thoroughness. This standard, however, does not

require a counsel to “raise and reject every possible complaint.” Marvin, 211 F.3d at 780.

Rather, a counsel must employ sound judgment to “conclude that no further discussion of

other areas of the case is necessary.” Id. (quoting United States v. Tabb, 125 F.3d 583,

585 (7th Cir. 1997)). Consequently, failure to uncover the best arguments on behalf of a

client is grounds for rejecting a counsel’s Anders brief. Id. at 781. Additionally, a

counsel must discuss why the issues raised are frivolous. We may reject an Anders brief

“in which counsel argue the purportedly frivolous issues aggressively without explaining

the faults in the arguments.” Marvin, 211 F.3d at 781.

       After reviewing the record in this appeal, it is apparent that Counsel thoroughly

reviewed both the record and the law. In turn we conclude that he has satisfied Rule

109.2(a)’s requirements. We therefore independently reviewed the record appended to

Wilcox’s brief. Because Counsel’s Anders brief is facially adequate, however, it guided

our review. See Youla, 241 F.3d at 301.

       Counsel maintains that there are no non-frivolous issues to raise on appeal because

Wilcox’s plea and sentencing hearings satisfied all statutory and constitutional

requirements. In his brief he therefore identifies three possible issues for appeal and

                                             4
explains why each is frivolous. They are: (1) whether the plea hearing met Federal Rule

of Criminal Procedure 11’s requirements; (2) whether the District Court complied with

proper sentencing rules; and (3) whether the judge erred in denying Wilcox’s motion for a

downward departure.

       First, Counsel explains why Wilcox’s plea hearing comported with Rule 11’s

requirements.2 Rule 11 sets forth a number of elements that must be satisfied in order for

a District Court to accept a guilty plea. These requirements include advising a defendant

of his constitutional rights, informing a defendant about the consequences of his guilty

plea, ensuring that a defendant’s plea is voluntary and determining that a factual basis

exists for the plea. Because the District Court engaged in an extensive colloquy with

Wilcox regarding his rights, these requirements were satisfied during his plea hearing.

(App.16-27) The District Court also determined that Wilcox was competent, capable, and

was voluntarily entering the plea. (App. 36) Wilcox also admitted a number of facts that

created a factual basis for the plea, including purchasing heroin in New York and

transporting the narcotics to New Jersey. (App. 34-35) Therefore, we agree with

Counsel that Wilcox’s plea hearing met Rule 11’s requirements and any appeal predicated

upon the adequacy of the hearing would be frivolous.

       Next, Counsel questions whether the District Court complied with Rule 32’s


       2
        We exercise plenary review over whether a plea hearing met Rule 11’s
requirements and over whether a district court complied with Federal Rule of Criminal
Procedure 32’s strictures during a sentencing hearing. See United States v. Cherry, 10
F.3d 1003, 1013-14 (3d Cir. 1993).

                                             5
requirements, concluding that the sentencing hearing was properly conducted.

Specifically, Counsel notes that the “Court confirmed with both Wilcox and defense

counsel that they had the opportunity to review and discuss the Presentence Investigation

Report,” as well as an opportunity to offer any objections to the Report. (App. 40-42)

The District Court also afforded Wilcox an opportunity to speak, of which Wilcox took

advantage. (App. 53) Finally, the District Court informed Wilcox of his right to appeal.

(App. 58) After examining the transcript of the sentencing hearing, we agree that the

District Court satisfied Rule 32’s requirements and therefore any appeal predicated upon

a challenge to the sentencing hearing would be frivolous.

       Finally, Counsel raises a sentencing issue, concluding that the District Court did

not err in denying Wilcox’s motion for a downward departure based upon compelling

circumstances. At his sentencing hearing, Wilcox argued that his “exposure to drug

trafficking and related criminal behavior at such a young and impressionable age

constituted significant extenuating circumstances not otherwise contemplated by the

Federal Sentencing Guidelines.” Appellant’s Br. at 14. The District Court disagreed,

noting that the Sentencing Guidelines foreclosed such a departure and therefore denied

Wilcox’s motion. (App. 48-50) The District Court also noted that if it did have

discretion to depart on this basis, it would not do so in Wilcox’s case because “the

circumstances . . . [Wilcox] describes in no way are unusual and are all too common.”

(App. 49) Generally, “[w]e lack jurisdiction to review a district court’s refusal to depart

downward when, aware that it has the authority to depart, it nonetheless determines that a

                                             6
departure is not warranted,” United States v. Nolan-Cooper, 155 F.3d 221, 224 (3d Cir.

1998) (citing United States v. Sally, 116 F.3d 76, 78 (3d Cir. 1997). Here, the District

Court considered the parties’ arguments and appropriately considered the 18 U.S.C. §

3553(a) factors. Therefore, any appeal based on the District Court’s denial of Wilcox’s

motion for a downward departure would be frivolous.

       In sum, our independent review of the issues raised the Anders brief confirms that

Wilcox’s issues for appeal have no arguable merit and any appeal would be wholly

frivolous.

                                              III.

       For the foregoing reasons, we grant Counsel’s motion to withdraw because he has

satisfied his obligations under Anders. We further conclude that it is not necessary to

appoint counsel to file a petition for rehearing in this Court or a petition for writ of

certiorari in the United States Supreme Court on Wilcox’s behalf. See Local Appellate

Rule 109.2(b). Therefore, we affirm the District Court’s judgment and sentence.




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