                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                      No. 10-3794
                                    ______________

                           UNITED STATES OF AMERICA

                                           v.

                          RYLAND GRIZZLE RODRIGUEZ,

                                                              Appellant
                                    ______________

                    On Appeal from the United States District Court
                            for the District of New Jersey
                        (D.C. Crim. No. 2-09-cr-00679-002)
                     Honorable Susan D. Wigenton, District Judge
                                   ______________

                       Submitted under Third Circuit LAR 34.1(a)
                                    June 24, 2011

       BEFORE: HARDIMAN, VANASKIE, and GREENBERG, Circuit Judges

                                 (Filed: June 28, 2011)
                                    ______________

                              OPINION OF THE COURT
                                  ______________

GREENBERG, Circuit Judge.

      This matter comes on before this Court on an appeal from a judgment of sentence

and conviction entered on August 20, 2010, pursuant to a plea agreement set forth in a

letter dated September 30, 2009, from assistant United States attorney Brooke E. Carey to
Cathy L. Waldor, attorney for appellant Ryland Grizzle Rodriguez, specifying the terms

of the plea agreement. Rodriguez and Waldor agreed to and accepted the plea agreement

by executing their written consents on October 30, 2009. The plea agreement followed

the return of an indictment against Rodriguez charging him with conspiracy to distribute

and possess 500 grams or more of cocaine pursuant to 21 U.S.C. § 846. The District

Court calculated Rodriguez’s total offense level as 23 and his criminal history category as

V, yielding a sentencing range 84 to 105 months. In fact, the Court sentenced Rodriguez

to a 96-month term of incarceration to be followed by a five-year term of supervised

release. The Court, however, did not impose a fine. After the District Court entered its

sentence Rodriguez appealed.

       We note at the outset that the plea agreement provided that Rodriguez waived his

right to appeal from the calculation of his total offense level if the District Court

calculated it as 23 or below but that he did not waive his right to challenge the District

Court’s calculation of his criminal history category. Nevertheless, Rodriguez has filed a

pro se brief challenging the Court’s calculation of both his total offense level and his

criminal history category. But the Government does not in its brief argue that we should

not consider Rodriguez’s challenge to his sentencing level and we have considered all of

his arguments.

       After Rodriguez filed his notice of appeal pro se we entered an order on

September 21, 2010, appointing Waldor as Rodriguez’s CJA counsel, continuing an

appointment the District Court had made. Waldor, however, has filed a motion and a

brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), seeking our

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permission to withdraw as attorney for Rodriguez and indicating that her “review of the

record . . . disclosed [that there were] no non-frivolous issues for appeal . . . .”

Appellant’s br. at 3. On February 2, 2011, the Clerk referred the motion to the merits

panel and advised Rodriguez that he could file a pro se brief on the merits of the case

and, as we indicated above, he has filed that brief. The Government filed its brief after

Rodriguez filed his brief and the Government’s brief therefore addresses both

Rodriguez’s counseled and pro se briefs. Not surprisingly, the Government contends that

all issues that Waldor and Rodriguez acting pro se have raised “lack any basis in law or

fact, and are thus frivolous.” Appellee’s br. at 2. After our review of this matter we

agree with the Government as we are satisfied that the contentions which both Waldor

and Rodriguez advance are frivolous.

       For the foregoing reasons we will grant Waldor’s motion to withdraw as attorney

for Rodriguez and will affirm the judgment of conviction and sentence entered on August

20, 2010.




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