                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 11-4563
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                                PAUL F. DSCHUHAN,

                                                Appellant
                            __________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                       (D.C. Criminal No. 2-11-cr-00106-001)
                     District Judge: Honorable David S. Cercone
                            __________________________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                December 17, 2013

       Before: JORDAN, VANASKIE, and VAN ANTWERPEN, Circuit Judges

                                 (Filed: March 4, 2014)
                                     _____________

                                      OPINION
                                    _____________

VANASKIE, Circuit Judge.

      Paul Dschuhan (“Dschuhan”) pleaded guilty to one count of interference with

commerce by threats or violence in violation of 18 U.S.C. § 1951. The United States

District Court for the Western District of Pennsylvania sentenced him to 27 months’
imprisonment, followed by 2 years of supervised release. Dschuhan filed a timely pro se

notice of appeal. We appointed counsel, who subsequently moved to withdraw pursuant

to Anders v. California, 386 U.S. 738 (1967), asserting that all potential grounds for

appeal are frivolous. Dschuhan filed a pro se brief in response. For the reasons that

follow, we will affirm the judgment and sentence of the District Court and grant the

motion to withdraw.

                                                 I.

       In March 2010, Dschuhan, a parole agent for the Pennsylvania Board of Probation

and Parole, approached his parolee to burglarize the home of an alleged drug dealer, turn

over the cash proceeds to Dschuhan, and keep or re-sell any contraband obtained in the

burglary. Dschuhan threatened the parolee with the possibility of jail if he did not

cooperate. The parolee relayed Dschuhan’s plan and threats to an FBI agent, who over

the following months monitored dozens of communications between the parolee and

Dschuhan. Eventually, in accord with the FBI’s instructions, the parolee pretended to

commit the planned burglary and delivered approximately $3,000 in cash to Dschuhan,

whom the FBI then arrested. After Dschuhan made a full confession regarding his

involvement in the plot, he was charged by information with one count of interference

with commerce by threats or violence in violation of 18 U.S.C. § 1951.

       On June 8, 2011, Dschuhan waived indictment and entered a plea of guilty to the

information without a plea agreement. The Presentence Report (PSR), as modified by an

addendum, cited U.S.S.G. § 2C1.1, which provides the base offense level for several



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crimes including extortion under color of official right.1 Here, because the extortion was

committed in furtherance of a burglary of a residence, the appropriate cross-reference

was to § 2B2.1(a)(1), which prescribes a base offense level of 17. The base offense level

was increased by 1 because the burglary involved a loss of between $2,500 and $10,000,

and by another level because it involved the taking of a controlled substance, both of

which are “specific offense characteristics” under § 2B2.1(b). The PSR also

recommended a 2-level increase for “abuse of trust” under § 3B1.3 and a 3-level decrease

for timely acceptance of responsibility under § 3E1.1. These calculations resulted in a

total offense level of 18, a Guideline imprisonment range of 27 to 33 months, and a

period of supervised release of up to three years.

           At sentencing on December 12, 2011, the District Court adopted these

calculations and noted that Dschuhan did not move for further departures. After hearing

from witnesses, Dschuhan’s attorney, and counsel for the Government, the District Court

considered the factors set forth in 18 U.S.C. § 3553(a) and made an individualized

assessment of Dschuhan’s circumstances. The District Court then imposed a sentence of

27 months’ imprisonment and two years of supervised release.

                                              II.




       1
          Because Dschuhan was a public official, this resulted in a base offense level of
14. Section 2C1.1, however, includes a “cross reference”, which provides for a
substitution of a higher offense level where (1) the extortion occurred in furtherance of
another criminal offense, and (2) the base offense level for conspiracy to commit that
separate offense would be higher than the base offense level prescribed by § 2C1.1 itself
(i.e., higher than 14).
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       The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We

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

       Counsel may seek to withdraw from representation if, “after a conscientious

examination” of the record, Anders, 386 U.S. at 744, he or she is “persuaded that the

appeal presents no issue of even arguable merit.” 3d Cir. L.A.R. 109.2(a). If we concur

with this assessment, we “will grant counsel’s Anders motion, and dispose of the appeal

without appointing new counsel.” Id.

       When presented with an Anders brief, our inquiry is two-fold: “(1) whether

counsel adequately fulfilled [Third Circuit L.A.R. 109.2(a)’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). The Anders brief must “satisfy the

court that counsel has thoroughly examined the record in search of appealable issues,”

and also “explain why the issues are frivolous.” Id. While “[c]ounsel need not raise and

reject every possible claim . . . at a minimum, he or she must meet the ‘conscientious

examination’ standard” from Anders. Id. If we find that “the Anders brief initially

appears adequate on its face,” in the second step of our analysis we will “confine our

scrutiny to those portions of the record identified by . . . [the] Anders brief,” as well as

“those issues raised in Appellant’s pro se brief.” Id. at 301.

                                                   III.

       Counsel's Anders brief demonstrates that the requirements of our Local Rule

109.2(a) have been fulfilled, thus satisfying step one of Youla. The brief reflects a

thorough examination of the record, helpfully directing our attention to possible

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appealable issues and applicable portions of the record. Counsel correctly found no

appealable issues with regard to Dschuhan's guilty plea or sentencing. Therefore, we turn

our attention to step two, and our independent review of the record, taking guidance from

the Anders briefing.

      Dschuhan has filed a pro se brief raising only ineffective-assistance-of-counsel

arguments. “[C]laims of ineffective assistance of counsel are ordinarily not cognizable

on direct appeal. The proper mechanism for challenging the efficacy of counsel is

through a motion pursuant to 28 U.S.C. § 2255.” United States v. Tobin, 155 F.3d 636,

643 (3d Cir. 1998) (citation omitted). Thus, Dschuhan’s arguments here are not

cognizable and do not present non-frivolous grounds for appeal.

                                           IV.

      In conclusion, we find that counsel’s Anders brief reflects a conscientious

examination of the record. Our independent review of the submissions, including

Dschuhan’s brief and the Government’s response to it, confirms that there are no non-

frivolous grounds for appeal. We will affirm the judgment of conviction and sentence,

and grant counsel’s motion to withdraw.




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