                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 12-3976
                                     ____________

                           UNITED STATES OF AMERICA

                                            v.

                           ARCHIE PORTER CARBAUGH,
                                               Appellant
                                  ____________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. No. 1-11-cr-00354-001)
                    District Judge: Honorable William W. Caldwell
                                     ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 28, 2013

            Before: FUENTES, FISHER and CHAGARES, Circuit Judges.

                                (Filed: August 13, 2013 )
                                     ____________

                                       OPINION
                                     ____________

FISHER, Circuit Judge.

      Archie Carbaugh appeals from his conviction and sentence for possession of an

unregistered firearm, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. The U.S.

District Court for the Middle District of Pennsylvania sentenced Carbaugh to 36 months’

imprisonment followed by three years of supervised release after he pled guilty to the
offense. Carbaugh’s defense counsel has filed a motion pursuant to Anders v. California,

386 U.S. 738 (1967), requesting leave to withdraw and asserting that Carbaugh has no

nonfrivolous arguments on appeal. For the following reasons, we will grant counsel’s

motion to withdraw, and we will affirm.

                                             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.

       In 2004, Carbaugh was convicted of a domestic violence misdemeanor in

Pennsylvania state court. As a result of this conviction, Carbaugh was prohibited from

possessing firearms. In March 2011, Carbaugh was sentenced to probation for an

unrelated traffic offense in the same court. Thereafter, when the county probation officer

visited Carbaugh, she observed a number of firearms inside his home. Because the

probation officer was aware of Carbaugh’s previous conviction, she contacted the

Pennsylvania State Police, who obtained a search warrant for his home. On March 25,

2011, the police executed the search warrant and recovered 112 firearms. One of the




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firearms was an unregistered .22 caliber rifle having a barrel length of 6¼ inches and an

overall length of 13 inches.1

       On December 14, 2011, a grand jury returned a two-count indictment charging

Carbaugh with possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5841,

5861(d), and 5871, and possession of a firearm by a prohibited person, in violation of

18 U.S.C. § 922(g)(9). On March 26, 2012, Carbaugh entered into an agreement in

which he pled guilty to Count One of the indictment – possession of an unregistered

firearm. The parties further stipulated pursuant to Federal Rule of Criminal Procedure

11(c)(1)(C) that the applicable sentencing range would be 36 to 60 months’

imprisonment. Without the plea agreement, Carbaugh would have potentially faced a

Sentencing Guidelines range of 84 to 105 months’ imprisonment.

       On April 17, 2012, the District Court conducted a plea colloquy in which it

explained to Carbaugh that he had a right to plead not guilty, a right to a jury trial, a right

to appeal (directly and collaterally), and that he would give up his rights to trial and

appeal if he pled guilty. After the government presented its evidence, Carbaugh agreed to

the facts. When the District Court asked Carbaugh how he wished to plead to Count One

of the indictment, he responded, “Guilty.” App. at 53.

       1
         Federal law defines a “firearm” to include “a rifle having a barrel or barrels of
less than 16 inches in length,” and “a weapon made from a rifle if such weapon as
modified has an overall length of less than 26 inches or a barrel or barrels of less than 16
inches in length.” 26 U.S.C. § 5845(a)(3), (4). Individuals possessing “firearms” must
register them in the National Firearms Registration and Transfer Record. 26 U.S.C.
§ 5861(d).

                                               3
       On September 27, 2012, the District Court sentenced Carbaugh to 36 months’

imprisonment followed by three years of supervised release. Carbaugh then filed a

timely notice of appeal.

                                            II.

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

under 28 U.S.C. § 1291.

       “Where, upon review of the district court record, counsel is persuaded that the

appeal presents no issue of even arguable merit, counsel may file a motion to withdraw

and supporting brief pursuant to Anders v. California, 386 U.S. 738 (1967).” Third

Circuit L.A.R. 109.2 (2011); see also United States v. Youla, 241 F.3d 296, 300 (3d Cir.

2001). When counsel submits an Anders brief, we must determine “(1) whether counsel

adequately fulfilled the rule’s requirements; and (2) whether an independent review of the

record presents any nonfrivolous issues.” Youla, 241 F.3d at 300.

                                            III.

       Counsel’s Anders brief identifies three potential issues on appeal: (1) whether

there was sufficient evidence in the record to support a guilty plea; (2) whether there was

a knowing and voluntary waiver of appellate rights; and (3) whether the potential

shortcomings in the plea colloquy, including the District Court’s failure to address

Carbaugh’s right to representation by counsel at trial, affected Carbaugh’s substantial




                                             4
rights. Counsel asserts that Carbaugh has no nonfrivolous arguments pertaining to these

issues.

          We are satisfied that counsel has sufficiently reviewed the record for appealable

issues, and we agree that there are no nonfrivolous issues on appeal. With respect to the

sufficiency of the evidence, the record shows that the evidence outlined in the plea

colloquy covered all of the elements of the possession of an unregistered firearm offense:

the police found in Carbaugh’s home a .22 caliber rifle with a barrel length of 6¼ inches

and an overall length of 13 inches; the characteristics of the rifle indicate that it was a

firearm subject to the registration requirements of the National Firearms Act, 26 U.S.C.

§§ 5801-5872; and Carbaugh did not register the rifle in the National Firearms

Registration and Transfer Record.

          It is also evident that Carbaugh knowingly and voluntarily waived his appellate

rights. During the plea colloquy, the District Court addressed Carbaugh, explained that

he had a right to a jury trial, a right to plead not guilty, and that he would be waiving his

appellate rights as a term of his plea agreement. Counsel for Carbaugh also took time to

address the waiver of these rights with Carbaugh on the record. Carbaugh then agreed to

the appellate waiver.

          Finally, although the District Court may have erred under Rule 11(b)(1)(D) by

failing to inform Carbaugh during the plea colloquy that he had a right to be represented

by counsel at trial and at every other stage of the proceeding, this error was not brought to


                                               5
the District Court’s attention. When an error is raised for the first time on appeal, we

review for plain error and ask whether the error affected the defendant’s “substantial

rights.” Fed. R. Crim. P. 52(b). A Rule 11 error affects substantial rights when the

defendant can “show a reasonable probability that, but for the error, he would not have

entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). In

essence, the defendant must show “that the probability of a different result is sufficient to

undermine confidence in the outcome of the proceeding.” Id. (internal quotation marks

omitted).

       Here, we are confident that the outcome of the proceeding was not affected by the

Rule 11 error. When the record reveals significant evidence of guilt, as this record does,

“one can fairly ask a defendant seeking to withdraw his plea what he might ever have

thought he could gain by going to trial.” Id. at 85. Given the incriminating evidence

presented by the government, the District Court’s almost complete recitation of

Carbaugh’s pertinent rights, the fact that Carbaugh was represented by counsel during the

hearing, and the fact that Carbaugh faced a sentencing range of 84 to 105 months’

imprisonment if he did not enter into the agreement, we cannot see how the District

Court’s oversight could have had any effect on Carbaugh’s assessment of his strategic

position.




                                              6
                                          IV.

      We will grant counsel’s motion to withdraw, and we will affirm the District

Court’s judgment of conviction and sentencing order.




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