                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 11-2326
                                     ____________

                           UNITED STATES OF AMERICA

                                            v.

                                  ANIBAL PERALTE,
                                   a/k/a Aniba Meriza

                                  ANIBAL PERALTE,
                                            Appellant
                                    ____________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. No. 1-10-cr-00227-001)
                    District Judge: Honorable William W. Caldwell
                                     ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 24, 2012

   Before: McKEE, Chief Judge, FISHER and GREENAWAY, JR., Circuit Judges.

                               (Filed: February 28, 2012 )
                                     ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      Anibal Peralte appeals from the judgment of conviction and sentence entered in

the United States District Court for the Middle District of Pennsylvania. Counsel for
Peralte, pursuant to Anders v. California, 386 U.S. 738 (1966), filed an Anders brief

explaining in detail that there are no non-frivolous issues on appeal. Counsel has

additionally filed a motion with this Court seeking leave to withdraw. Peralte did not file

a response to Counsel’s brief and motion.

       For the reasons discussed below, we will affirm the judgment of the District Court

and grant defense counsel’s motion to withdraw.

                                             I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       On July 28, 2010, Peralte was arrested by agents of the Drug Enforcement

Administration. A two-count federal indictment followed. Count 1 charged Peralte with

distribution and possession with intent to distribute heroin and cocaine hydrochloride, in

violation of 21 U.S.C. § 841(a)(1). Count 2 charged Peralte with illegal reentry after

deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2), as well as 6 U.S.C. § 202(3) –

(4), and § 557. On November 5, 2010, pursuant to a plea agreement, Peralte pled guilty

to both counts. Paragraph 22 of the plea agreement specified that Peralte waived his

“right to appeal any conviction and sentence . . . on any and all grounds set forth in [18

U.S.C. § 3742] or any other grounds, constitutional or non-constitutional[.]” The waiver

provision also precluded his right to collateral appeal under 28 U.S.C. § 2255.


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       At sentencing on May 3, 2011, the District Court identified the applicable

Sentencing Guidelines range as 57 to 71 months’ imprisonment. The District Court

denied Peralte’s motion for a downward “safety valve” adjustment based on U.S.S.G.

§ 5C1.2, but granted a variance to eliminate any sentencing disparity that might have

been caused by the lack of a “fast-track program” that is sometimes available in

immigration cases. As a result, Peralte was sentenced to serve concurrent sentences of 51

months on Count 1 and 24 months on Count 2. He timely appealed.

                                            II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction under 28 U.S.C. § 1291.

       Pursuant to Anders, counsel may seek to withdraw representation if, after

reviewing the District Court’s record, he or she is “persuaded that the appeal presents no

issue of even arguable merit.” 3d Cir. L.A.R. 109.2(a); see United States v. Youla, 241

F.3d 296, 300 (3d Cir. 2001) (“Third Circuit Local Appellate Rule 109.2(a) reflects the

guidelines the Supreme Court promulgated in Anders . . . .”). We exercise plenary review

in determining whether any non-frivolous arguments remain. See Penson v. Ohio, 488

U.S. 75, 82-84 & n.6 (1988). To grant counsel’s request, we must be satisfied that

counsel “has thoroughly scoured the record in search of appealable issues and . . .

explain[ed] why the issues are frivolous.” United States v. Coleman, 575 F.3d 316, 319

(3d Cir. 2009) (internal quotation marks and citation omitted). Our “inquiry when


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counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled

the . . . requirements [of 3d Cir. L.A.R. 109.2(a)]; and (2) whether an independent review

of the record presents any nonfrivolous issues.” Youla, 241 F.3d at 300 (citation

omitted). If we determine that “the Anders brief initially appears adequate on its face,”

the second step of our inquiry is “guided . . . by the Anders brief itself.” Id. at 301

(quotation marks and citation omitted).

                                              III.

       Counsel for Peralte identified three potential issues for appeal: (1) the District

Court’s denial of a two-level safety valve adjustment pursuant to U.S.S.G. § 5C1.2(a)(5);

(2) the sufficiency of the evidence supporting Peralte’s plea of guilty on both charges;

and (3) the validity of Peralte’s appellate waiver. Counsel ultimately concluded that each

issue is frivolous, and our independent review leads us to the same conclusion.

       The third issue is dispositive; if Peralte’s appellate waiver is valid, then he has

waived his right to appeal on “any” grounds, including the sentencing and sufficiency of

the evidence issues. The seminal case governing appellate waivers in this Court is United

States v. Khattak, 273 F.3d 557 (3d Cir. 2001). Under Khattak, appellate waivers are

valid “if entered into knowingly and voluntarily, unless they work a miscarriage of

justice.” Id. at 558. Even “the most basic rights of criminal defendants are . . . subject to

waiver.” Peretz v. United States, 501 U.S. 923, 936 (1991); Khattak, 273 F.3d at 561.




                                               4
Pursuant to his plea agreement, Peralte comprehensively waived his rights, pursuant to 18

U.S.C. § 3742 and 28 U.S.C. § 2255, to a direct or collateral appeal.

       To determine whether the waiver was knowing and voluntary, we “look to the

colloquy between the sentencing judge and [the defendant,]” United States v. Price, 558

F.3d 270, 284 (3d Cir. 2009) (quoting United States v. Gwinnett, 483 F.3d 200, 204 (3d

Cir. 2007)), and examine whether the sentencing judge complied with the requirements of

Rule 11 of the Federal Rules of Criminal Procedure. See United States v. Jackson, 523

F.3d 234, 243 (3d Cir. 2008). Rule 11 provides that:

       “Before the court accepts a plea of guilty or nolo contendere, the defendant
       may be placed under oath, and the court must address the defendant
       personally in open court. During this address, the court must inform the
       defendant of, and determine that the defendant understands . . . the terms of
       any plea-agreement provision waiving the right to appeal or to collaterally
       attack the sentence.”

Fed. R. Crim. Pro. 11(b)(1). Additionally, the court “must address the defendant

personally in open court and determine that the plea is voluntary and did not result from

force, threats, or promises (other than promises in the plea agreement).” Id. at 11(b)(2).

       In the case at bar, the sentencing judge complied with the requirements of Rule 11.

Through the aid of an interpreter, the District Court found that Peralte understood the

effects of the plea agreement and appellate waiver and voluntarily pled guilty. Based on

the record, we find that the District Court’s colloquy was thorough and proper, and agree

with the District Court’s finding that Peralte’s appellate waiver was knowing and

voluntary. See Jackson, 523 F.3d at 243.

                                             5
       Furthermore, nothing in the record indicates that enforcing the appellate waiver in

this case would constitute a “miscarriage of justice.” Khattak, 273 F.3d at 558. Peralte’s

situation simply does not present the type of “unusual circumstance” which could amount

to a miscarriage of justice, such as “if the sentence was . . . imposed in excess of the

maximum penalty provided by law or . . . based on a constitutionally impermissible

factor such as race.” Khattak, 273 F.3d at 562 (internal quotation marks and citation

omitted).

                                             IV.

       For the reasons set forth above, we will affirm the judgment of the District Court

and grant defense counsel’s motion to withdraw. Additionally, pursuant to Third Circuit

Local Appellate Rule 109.2(b), we certify that the present appeal “lack[s] legal merit for

purposes of counsel filing a petition for writ of certiorari in the Supreme Court.”




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