                                                    NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                  _____________

                                   No. 11-2886
                                  _____________

                        UNITED STATES OF AMERICA

                                         v.

                             FABIO GIL-POLANCO
                                 a/k/a FABIO GIL
                              a/k/a JOSE CUEVAS
                              a/k/a SANDY REYES

                             FABIO GIL-POLANCO,
                                    Appellant
                               ________________

                On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                       District Court No. 2-10-cr-00522-001
               District Judge: The Honorable Michael M. Baylson


                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 June 28, 2012

                   Before: SMITH, and FISHER, Circuit Judges
                      and RAKOFF, Senior District Judge

                              (Filed: June 28, 2012 )
                             _____________________

  The Honorable Jed S. Rakoff, Senior United States District Judge for the United
States District Court for the Southern District of New York, sitting by designation.
                                   OPINION
                            _____________________

SMITH, Circuit Judge.

      Pursuant to a written plea agreement, Fabio Gil-Polanco, a native and citizen

of the Dominican Republic, pleaded guilty to unlawful reentry after deportation in

violation of 8 U.S.C. §§ 1326(a) and (b)(2).         Gil-Polanco’s plea agreement

contained a broad appellate waiver, permitting an appeal under limited

circumstances.   The United States District Court for the Eastern District of

Pennsylvania sentenced Gil-Polanco to, inter alia, an above-guidelines sentence of

48 months of imprisonment. The following day, Gil-Polanco, proceeding pro se,

filed a notice of appeal.1 Thereafter, his counsel moved to withdraw pursuant to

Anders v. California, 386 U.S. 738 (1967).

      In Anders, the Supreme Court stated that the “constitutional requirement of

substantial equality and fair process” means that appellate counsel must act as an

advocate for the defendant. 386 U.S. at 744. Thus, counsel’s

      role as advocate requires that he support his client’s appeal to the best
      of his ability. Of course, if 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. That request must,
      however, be accompanied by a brief referring to anything in the

1
 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                         2
      record that might arguably support the appeal.

Id. As we explained in United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001),

the Anders brief must demonstrate that counsel has “thoroughly examined the

record in search of appealable issues,” and it must “explain why the issues are

frivolous.” Accordingly, our inquiry is twofold: (1) whether counsel adequately

fulfilled the requirements of Anders; and (2) “whether an independent review of

the record presents any nonfrivolous issues.” Id. (citing United States v. Marvin,

211 F.3d 778, 780 (3d Cir. 2000)); see also Anders, 386 U.S. at 744 (explaining

that the court must proceed, “after a full examination of all the proceedings, to

decide whether the case is wholly frivolous”).         If review fails to reveal any

nonfrivolous issues, the court “may grant counsel’s request to withdraw and

dismiss the appeal.” Anders, 386 U.S. at 744.

      After considering counsel’s Anders brief, we are satisfied that counsel

fulfilled the requirements of Anders. As counsel noted, Gil-Polanco pleaded guilty

and his plea agreement contained a broad appellate waiver. As a result, Gil-

Polanco’s right to appeal is limited by not only the appellate waiver, see United

States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001), but also the general rule that a

defendant who pleads guilty may attack only the validity of his guilty plea and the

legality of his sentence. See Tollett v. Henderson, 411 U.S. 258, 267 (1973).


                                         3
Counsel contends that there is no basis for challenging the validity of Gil-

Polanco’s guilty plea as it was voluntary and knowing. Indeed, Gil-Polanco’s

informal pro se brief does not dispute the validity of his guilty plea.2

         Because the sentence imposed by the District Court exceeded the sentencing

guideline range, we conclude, consistent with the exception set forth in Gil-

Polanco’s appellate waiver, that he may challenge the substantive reasonableness

of his sentence.3 We agree with counsel, however, that any such challenge lacks

merit.    Although the 48 month term of imprisonment exceeds the sentencing

guideline range of 24 to 30 months, it does not exceed the statutory maximum of

20 years. The District Court properly considered the sentencing factors set forth in

18 U.S.C. § 3553(a) in fashioning the sentence. Citing the fact that Gil-Polanco’s

conviction was his third such conviction for unlawful reentry after deportation and

that the instant conviction was committed during his term of supervised release on

the second conviction for unlawful reentry, the District Court concluded that Gil-

Polanco had little regard for the laws of the United States. The District Court

further noted that Gil-Polanco had not been deterred by his previous sentences of

2
    Gil-Polanco received a copy of counsel’s Anders brief and the motion to
withdraw as counsel. Consistent with Third Circuit L.A.R. 109.2(a), Gil-Polanco
filed a pro se informal brief, challenging only the reasonableness of the District
Court’s sentence of 48 months.
3
  We review the District Court’s sentence for an abuse of discretion. United States
v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).
                                           4
10 and 24 months, and it expressed doubt whether Gil-Polanco would be

personally deterred by the sentence to be imposed. Nonetheless, the District Court

believed that it needed to deter others, who might be tempted to illegally reenter

the United States. These are valid considerations under § 3553(a). See 18 U.S.C.

§§ 3553(a)(2)(A) and (B). We conclude that the District Court did not abuse its

discretion in imposing an upward variance of 48 months of imprisonment.

      For the above stated reasons, we will grant counsel’s motion to withdraw

and affirm the judgment of the District Court. We certify that the issues presented

in the appeal lack legal merit and thus do not require the filing of a petition for writ

of certiorari with the Supreme Court. 3rd Cir. L.A.R. 109.2(b).




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