                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 15–2504
                                      ____________

                           UNITED STATES OF AMERICA,

                                             v.

                              ANTONIO SANTOS VALLE,

                                                       Appellant
                                      ____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. No. 2-01-cr-00490-001)
                       District Judge: Honorable J. Curtis Joyner
                                     ____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   March 7, 2017

       Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges.

                            (Opinion Filed: March 13, 2017)
                                    ____________

                                        OPINION*
                                      ____________




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

       Antonio Valle appeals his judgment of sentence and his counsel has filed a motion

to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). Because counsel

complied with Third Circuit Local Appellate Rule 109.2(a) and an independent review of

the record reveals no nonfrivolous issues, United States v. Coleman, 575 F.3d 316, 319

(3d Cir. 2009), we will grant counsel’s motion and affirm the District Court’s judgment.

                                              I

       After spending 80 months in prison for conspiracy to distribute and possession

with intent to distribute cocaine, Antonio Valle repeatedly violated the terms of his

supervised release. In 2008, the United States District Court for the Eastern District of

Pennsylvania confined Valle to his home for three months for driving with a suspended

license. In 2009, the Court sent him to a residential reentry center for six months after a

series of violations, including: drunk driving, disorderly conduct (threatening a female

relative), and violating the terms of his home confinement.

       Despite these modifications to his supervised release, Valle’s troubles with the law

continued. In 2011, a Pennsylvania state court convicted him on two counts of insurance

fraud and one count of criminal conspiracy, and in 2012, he was convicted of delivery of

a controlled substance (cocaine) and criminal use of a communication facility. After a

hearing on May 31, 2012, the District Court reviewed these convictions, found they

violated Valle’s terms of supervised release, and imposed a sentence of 36 months’

imprisonment—the statutory maximum—to run consecutive to his state sentences. We
                                              2
vacated the judgment of the District Court for procedural error, United States v. Valle,

527 F. App’x 158, 160 (3d Cir. 2013), and remanded for resentencing.

       On remand, the District Court conducted a thorough hearing and, after explaining

its reasons, resentenced Valle to 36 months’ imprisonment, to run consecutive to his state

prison terms. After hearing from both attorneys and engaging Valle’s arguments for

leniency (including his desire to be with his children), the Court found that “the nature

and circumstances of the offenses” still warranted a 36-month prison sentence. App. 139.

Valle’s “history and characteristics” cut against him; he continued to violate his

supervised release even after home confinement, electronic monitoring, and the

residential reentry center. Id. The District Court explained that the term of imprisonment

was necessary to mete out a “just punishment” for Valle’s multiple, “serious[]”

violations, to deter him from future illegal activity, and to protect the public from Valle’s

crimes. App. 140.

       Valle timely filed this appeal and his counsel moved to withdraw under Anders.




                                              3
                                             II1

       When counsel finds a criminal appeal to be “wholly frivolous” despite a

“conscientious examination” of the record, she may request the Court’s permission to

withdraw. Anders, 386 U.S. at 744. In reviewing counsel’s Anders brief, “[w]e exercise

plenary review to determine whether . . . the record presents any nonfrivolous issues.”

Simon v. Gov’t of V.I., 679 F.3d 109, 114 (3d Cir. 2012) (citations omitted); see also 3d

Cir. LAR 109.2(a). Frivolous issues are those which are not “arguable on their merits.”

Simon, 679 F.3d at 114 (citation omitted).

                                             III

       Here, Valle’s counsel’s brief shows that she “has thoroughly examined the record

in search of appealable issues, and . . . explain[ed] why the issues are frivolous.” United

States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). The brief spends twelve pages

carefully addressing any potential issues. And because our independent review found no

nonfrivolous issues, we will grant counsel’s motion to withdraw.

       There is no basis to challenge the District Court’s finding that Valle violated his

supervised release. Valle admitted in his first appeal that he was convicted of crimes in

Pennsylvania state court and that the District Court properly relied on those convictions

to revoke his supervised release. App. 96–98. Instead of challenging the revocation


       1
       The District Court had jurisdiction under 18 U.S.C. §§ 3231 and 3583(e). We
have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).


                                             4
directly, Valle pursued the futile course of challenging the validity of his underlying

conviction.

       The only potential issue in this case is whether the District Court’s sentence was

reasonable. To make that determination, we consider whether the District Court (1)

correctly calculated the “guidelines range applicable to a defendant’s particular

circumstances,” (2) “gave meaningful consideration to the [18 U.S.C.] § 3553(a) factors”

for sentencing, and (3) “reasonably applied [the § 3553(a) factors] to the circumstances of

the case.” United States v. Cooper, 437 F.3d 324, 329–30 (3d Cir. 2006).

       In his first appeal, Valle conceded that the District Court properly calculated the

United States Sentencing Guidelines range: 30 to 37 months’ imprisonment. Valle’s 36-

month sentence is thus “more likely to be reasonable than one outside the guidelines

range.” Cooper, 437 F.3d at 331. The consecutive nature of the sentence was also within

the Court’s discretion under 18 U.S.C. § 3584(a) and USSG § 7B1.3(f).

       The record made during Valle’s resentencing shows that the District Court

considered and reasonably applied the 18 U.S.C. § 3553(a) factors. First, the nature and

circumstances of the most recent violations and Valle’s history go hand in hand: the two

state convictions are the latest in a long line of violations of his supervised release. In the

face of ineffective lesser punishments (home confinement and the residential reentry

center), the Court deemed imprisonment the only proper response to Valle’s escalating

crimes (from driving without a license, to drunk driving, to threats, to insurance fraud, to

drug possession). Second, the Court discussed, and rejected, Valle’s plea for leniency for
                                               5
the sake of his children. Despite Valle’s disappointment, his family concerns could not

outweigh the other § 3353(a) factors. And third, the District Court reasonably explained

why the needs of “just punishment,” “adequate deterrence,” and “protect[ion of] the

public,” 18 U.S.C. § 3553(a)(2), all supported Valle’s three-year prison term. See App.

139–40.

         In sum, Valle’s sentence was substantively and procedurally reasonable. It would

be frivolous to argue that “no reasonable sentencing court would have imposed” this

within-Guidelines sentence. United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en

banc).

                                             IV

         Because counsel properly complied with our Anders procedures and there are no

nonfrivolous issues in this case for review on appeal, we will grant counsel’s motion to

withdraw and affirm the judgment of the District Court.




                                             6
