                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                    _____________

                                     No. 10-3038
                                    _____________


                           UNITED STATES OF AMERICA

                                            v.

                                   DUSTIN MILLER,

                                             Appellant

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                (No. 4:10-cr-00023-001)
                       District Judge: Hon. James F. McClure

                              Submitted January 27, 2011

             Before: FUENTES, CHAGARES, and ROTH, Circuit Judges.

                                 (Filed: April 11, 2011)

                                     ____________

                                      OPINION
                                    ____________



CHAGARES, Circuit Judge.

      Dustin Miller appeals the sentence imposed upon him by the District Court after

he pleaded guilty to one count of assault with a deadly weapon in violation of 18 U.S.C. §
113(a)(3). His attorney has filed a motion to withdraw pursuant to Anders v. California,

386 U.S. 738 (1967). For the reasons set forth below, we will grant the motion to

withdraw and affirm the sentence.

                                            I.

      Because we solely write for the benefit of the parties, we will only briefly

summarize the essential facts. Following Miller’s plea of guilty, the Probation Office

prepared a Presentence Investigation Report (“PSR”), which calculated an advisory

guidelines offense level of eighteen and a criminal history category of three. The PSR’s

criminal history category calculation included a one-point increase under U.S.S.G. §

4A1.1(e) because the assault to which Miller pleaded guilty occurred while he was in

prison on another offense. The PSR thus arrived at an advisory guidelines sentence range

of 33-41 months.

      Miller objected to the PSR, arguing that (1) the court should not apply the one-

point enhancement for commission of the offense while in prison because the United

States Sentencing Commission had recently voted to amend the Guidelines by deleting

this enhancement, (2) the court should not grant an upward departure based on the

inadequacy of his criminal history category, and (3) the court should grant a downward

variance pursuant to 18 U.S.C. § 3553(a). Miller reiterated these objections at

sentencing.

      The District Court overruled the first objection, stating that the amendment was

not yet effective and that Miller’s criminal history category would remain unchanged,

even if the one-point increase were not applied. As to Miller’s second objection, the

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District Court noted that the Government had not argued for an upward departure and that

it would not apply one. And, finally, as to Miller’s request for a downward variance, the

District Court stated that, in spite of the Government’s argument in favor of a sentence of

33 months’ imprisonment, it found a sentence of 36 months’ imprisonment to be

necessary to provide “appropriate deterrence in a prison setting to this type of assault.”

Appendix (“App.”) at 69.

                                             II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we exercise

appellate jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

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

examination of the District Court record, he or she is “persuaded that the appeal presents

no issue of even arguable merit . . . .” 3d Cir. L.A.R. 109.2(a) (2010); see also Anders,

386 U.S. at 744. We exercise plenary review in ascertaining whether an appeal is wholly

frivolous. In this regard, our inquiry is twofold: first, we ask whether counsel has

thoroughly examined the record for appealable issues and has adequately explained to the

court why any such issues are frivolous; second, we ask whether an independent review

of the record presents any non-frivolous issues. See United States v. Youla, 241 F.3d

296, 300 (3d Cir. 2001). Where the Anders brief appears adequate on its face, we limit




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our scrutiny to those parts of the record identified in the brief, as well as any issues

asserted by the appellant in a pro se brief.1 Id. at 301.

       After a review of the Anders brief submitted in this case, we are convinced that

Miller’s attorney has “thoroughly examined the record in search of appealable issues,” id.

at 300, and has adequately explained why any issues arguably supporting the appeal are

frivolous. Our independent review of the record confirms that the issues set forth by

counsel are frivolous and that no other non-frivolous issues exist.

       As counsel correctly points out, following an unconditional plea of guilty, a

defendant is generally limited to three appealable issues: (1) the district court’s power to

enter the conviction or impose the sentence, (2) the validity of the defendant’s plea, and

(3) the reasonableness and legality of the resulting sentence. See United States v. Broce,

488 U.S. 563, 569 (1989); Menna v. New York, 423 U.S. 61, 62 n.2, 63 (1975) (per

curiam); 18 U.S.C. § 3742(a).

       First, there is no question with regard to the District Court’s power to enter

Miller’s conviction and impose his sentence, as district courts have subject matter

jurisdiction over all offenses against the laws of the United States. See 18 U.S.C. § 3231.

       Second, Miller cannot meet his burden of establishing that the District Court failed

to comply with the dictates of Boykin v. Alabama, 395 U.S. 238 (1969), in accepting his

guilty plea. At the plea hearing, the District Court (1) explained the nature of the charge

to which Miller was entering a plea, (2) warned Miller that by virtue of his guilty plea, he

1
 Miller was advised by the Court of his right to file a pro se brief, but has elected not to
do so. Our review, therefore, is confined to the portions of the record identified in
counsel’s Anders brief.
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was waiving his right to a trial by jury, at which the Government would have to prove

him guilty beyond a reasonable doubt, and his right to be represented by counsel at that

trial, (3) ensured that Miller understood the maximum penalty to which he could be

subjected, (4) confirmed that Miller was satisfied with counsel’s representation, (5)

ensured that Miller’s plea was voluntary and not the result of coercion or any promises,

and (6) explained that the court alone would determine the proper sentence. App. at 37-

44. The Government then set forth a factual basis for the guilty plea. App. at 44-48. On

this record, there are no non-frivolous issues for appeal as to the validity of Miller’s

guilty plea.

       Finally, there are no non-frivolous issues with regard to the legality and

reasonableness of Miller’s sentence. Pursuant to the mandate of United States v. Booker,

“the courts of appeals review sentencing decisions for unreasonableness.” 543 U.S. 220,

264 (2005). District courts must follow a three-step sentencing process:

       (1) Courts must continue to calculate a defendant's Guidelines
       sentence precisely as they would have before Booker.

       (2) In doing so, they must formally rule on the motions of both
       parties and state on the record whether they are granting a departure
       and how that departure affects the Guidelines calculation, and take
       into account our Circuit's pre-Booker case law, which continues to
       have advisory force.

       (3) Finally, they are required to exercise their discretion by
       considering the relevant § 3553(a) factors, in setting the sentence
       they impose regardless whether it varies from the sentence
       calculated under the Guidelines.

United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006) (citations, quotations, and

brackets omitted). With regard to the calculation of his guidelines sentence range, Miller

                                              5
took issue only with the application of the one-point increase in his criminal history

category calculation based upon U.S.S.G. § 4A1.1(e). As the District Court explained,

however, the amendment on which Miller’s argument relied did not take effect until after

his sentencing hearing and, thus, the District Court was not obligated to take account of

it in its calculations. See U.S.S.G. § 1B1.11(a). Moreover, even if the District Court had

sustained Miller’s objection to the application of this particular enhancement, it would

have had no effect on his criminal history category.2

       As to the third step in the sentencing process, we have made clear that a sentence

“will be upheld as reasonable if the record as a whole reflects rational and meaningful

consideration of the factors enumerated in 18 U.S.C. §3553(a).” United States v.

Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006) (internal quotation omitted). This

“standard requires a deferential review of the record developed by the district court to

determine whether the final sentence, wherever it may lie within the permissible statutory

range, was premised upon appropriate and judicial consideration of the relevant factors.”

Id. Importantly, the procedural requirement that the sentencing court give meaningful

consideration to the §3553(a) factors does not necessitate an explicit discussion and

finding as to each individual factor, as long as the record makes clear that the court took

the factors into account and applied them logically. United States v. Cooper, 437 F.3d

324, 329 (3d Cir. 2006) (citations omitted). The sentencing judge need only “set forth

enough to satisfy the appellate court that he has considered the parties’ arguments and has

2
 The PSR concluded that Miller had six criminal history points, which corresponds to a
criminal history category of three. Five criminal history points similarly corresponds to a
criminal history category of three.
                                             6
a reasoned basis for exercising his own legal decision-making authority.” Rita v. United

States, 551 U.S. 338, 356 (2007) (citing United States v. Taylor, 487 U.S. 326, 336-37

(1988)).

       A review of the record makes clear that there is no basis upon which to argue that

the District Court’s sentence was unreasonable. The District Court considered Miller’s

arguments in favor of a downward variance, as well as the Government’s argument in

favor of a sentence at the bottom of the guidelines range. The District Court then

explained that, in arriving at its sentence, it had taken account of the factors set forth in §

3553(a) and determined that 36 months’ imprisonment was necessary to provide

“appropriate deterrence in a prison setting to this type of assault.” App. at 69. The

District Court having fully complied with the three-step sentencing procedure we set

forth in Gunter, there is no non-frivolous basis upon which to argue that Miller’s sentence

was unreasonable.

                                              III.

       For the foregoing reasons, we will grant counsel’s motion to withdraw and will

affirm the District Court’s judgment of sentence. In addition, we certify that the issues

presented lack legal merit and that counsel is not required to file a petition for writ of

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




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