                                                    NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                       _____________

                         No. 11-2641
                        _____________

                UNITED STATES OF AMERICA

                               v.

                       HARON TUCKER
                         also known as
                       RONALD TUCKER
                         also known as
                        DANIEL SMITH

                                Haron Tucker,

                                     Appellant
                        ______________

     APPEAL FROM THE UNITED STATES DISTRICT COURT
      FOR THE WESTERN DISTRICT OF PENNSYLVANIA
               (D.C. Crim. Action No. 08-cr-230-1)
           District Judge: Honorable Nora Barry Fischer
                         ______________

            Submitted Under Third Circuit LAR 34.1(a)
                       December 13, 2012
                        ______________

Before: GREENAWAY, JR., GREENBERG, and COWEN, Circuit Judges.

                (Opinion Filed: January 24, 2013)
                                       ______________

                                          OPINION
                                       ______________


GREENAWAY, JR., Circuit Judge.

         Haron Tucker (“Tucker”) appeals the District Court’s June 10, 2011 judgment and

sentence of 180 months of imprisonment. Tucker pled guilty to possession of a firearm

by a convicted felon, in violation of 18 U.S.C. § 922(g). His counsel filed a brief,

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that no nonfrivolous

issues exist for appeal and seeking to withdraw as counsel. For the reasons set forth

below, we will grant counsel’s motion to withdraw and affirm the judgment and sentence

of the District Court.

                                       I. Background

         We write primarily for the benefit of the parties and recount only the essential

facts.

         While on patrol in police vehicles on June 21, 2007, City of Pittsburgh police

officers saw a group of men, including Tucker, standing in front of a building. As the

officers approached in their vehicles, they observed Tucker backing away from the group

while holding the right side of his waistband. When the officers exited their vehicles,

Tucker fled and the officers pursued him. During the pursuit, Tucker took a gun from his

waistband and threw it into some bushes. Tucker was soon apprehended and a .380




                                               2
millimeter Bersa automatic handgun was recovered from the bushes.

      A federal grand jury charged Tucker with possessing a firearm while being a

convicted felon. Tucker’s counsel filed two motions: a motion to dismiss the Indictment

on jurisdictional grounds and a motion to suppress Tucker’s post-arrest statements.

      Tucker subsequently pled guilty to possession of a firearm by a convicted felon.

The Presentence Report (“PSR”) reflected an advisory Guideline range of 168 to 210

months of imprisonment. However, because Tucker was also designated as an armed

career criminal under the Armed Career Criminal Act (“ACCA”), the lower end of the

sentencing range rose to a mandatory minimum of 180 months of imprisonment. Tucker

sought a downward variance, asserting that the statutory sentencing enhancement under §

924(e) was inapplicable and that the mitigating provisions of U.S.S.G. § 4A1.2 should

apply. The District Court rejected these arguments and sentenced Tucker to 180 months

of imprisonment.

                                     II. Jurisdiction

      The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has

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

                                III. Standard of Review

      “In Anders v. California, 386 U.S. 738, 744 (1967), the Supreme Court explained

the general duties of a lawyer representing an indigent criminal defendant on appeal

when the lawyer seeks leave to withdraw from continued representation on the grounds




                                            3
that there are no nonfrivolous issues to appeal.” United States v. Marvin, 211 F.3d 778,

779 (3d Cir. 2000). The attorney must always “support his client’s appeal to the best of

his ability.” Anders, 386 U.S. at 744. If, however, “counsel finds his case to be wholly

frivolous, after a conscientious examination of it, he should so advise the court and

request permission to withdraw.” Id.

       To withdraw, counsel must “satisfy the court that he or she has thoroughly scoured

the record in search of appealable issues,” and “explain why the issues are frivolous.”

Marvin, 211 F.3d at 779-80. Thus, this Court’s inquiry when considering a lawyer’s

Anders brief is two-fold: we must determine “(1) whether counsel adequately fulfilled

[Third Circuit Local Appellate Rule 109.2’s] requirements; and (2) whether an

independent review of the record presents any non-frivolous issues.” United States v.

Youla, 241 F.3d 296, 300 (3d Cir. 2001). In accordance with 3d Cir. L.A.R. Rule 109.2,

if an appeal is judged to be wholly frivolous, this Court must “grant trial counsel’s

Anders motion, and dispose of the appeal without appointing new counsel.” United

States v. Coleman, 575 F.3d 316, 321 (3d Cir. 2009) (quotation marks omitted).



                                       III. Analysis

       Counsel thoroughly reviewed the record and concluded that: (1) the record

provides no support for a motion to invalidate the guilty plea; (2) the motion to dismiss

the indictment for lack of subject matter jurisdiction lacks merit based on Third Circuit




                                             4
precedent; (3) the suppression motion was rendered moot by the guilty plea and, even if

this were not the case, it lacks merit on appeal; and (4) the sentence imposed by the

District Court was both procedurally and substantively sound.

                                A. Validity of Guilty Plea

       A criminal defendant’s guilty plea is considered valid if entered “knowing[ly],

voluntary[ily] and intelligent[ly].” United States v. Tidwell, 521 F.3d 236, 251 (3d Cir.

2008). To ensure that a plea is knowing and voluntary, the district court must “address

the defendant personally in open court,” Fed. R. Crim. P. 11(c), advise defendant of the

consequences of his or her plea, and ensure that defendant understands them. United

States v. Schweitzer, 454 F.3d 197, 202 (3d Cir. 2006) (citing Boykin v. Alabama, 395

U.S. 238 (1969) and Fed. R. Crim. P. 11(c)).

       To challenge the validity of his guilty plea, Tucker would have had to demonstrate

that the requirements of Rule 11 of the Federal Rules of Criminal Procedure and the

constitutional requirements of Boykin had not been satisfied. However, having reviewed

the plea colloquy and record, counsel found no basis for the argument that Tucker’s plea

was unknowing, involuntary, or unintelligent. We agree with counsel’s conclusion that

the record shows Tucker’s plea was knowingly and voluntarily made.

                B. Motion to Dismiss for Unconstitutionality of Statute

       Tucker moved to dismiss the Indictment for lack of federal subject matter

jurisdiction, on the ground that the weapon described in the Indictment was never in




                                             5
interstate commerce because it had been manufactured overseas and imported into

Pennsylvania, where it remained until his arrest. Tucker argued that his conviction under

18 U.S.C. § 922(g)(1), which prohibits the possession of a firearm “in or affecting

commerce” by a convicted felon, was therefore an unconstitutional over-reach into intra-

state affairs. Tucker relied on Supreme Court rulings in three cases which limit the

federal government’s ability to justify legislation by the Commerce Clause: United

States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 598 (2000);

and Jones v. United States, 529 U.S. 848 (2000).

       The motion to dismiss was terminated as moot due to Tucker’s guilty plea.

Renewing this argument would be frivolous because this Court has held § 922(g)(1) to be

a constitutional exercise of Congress’ Commerce Clause powers, even after Lopez,

Morrison, and Jones. See United States v. Coward, 296 F.3d 176 (3d Cir. 2002).

Coward reaffirmed the reasoning of United States v. Singletary, which held that

“[s]ection 922(g)(1), by its very terms, only regulates those weapons affecting interstate

commerce by being the subject of interstate trade” and fits squarely within Congress’s

commerce power. 268 F.3d 196, 204 (3d Cir. 2001).

       Proof that the possessed firearm had previously traveled in interstate commerce is

sufficient to satisfy the required nexus between possession and commerce. Scarborough

v. United States. 431 U.S. 563 (1977). In this case, the interstate commerce element of

the offense was met because, as Tucker himself asserted, the gun referenced in the




                                             6
Indictment had been manufactured overseas and imported into the United States.

Counsel is correct that renewing a motion to dismiss on jurisdictional grounds has no

merit on appeal.

                           C. Motion to Suppress Statements

       Tucker also moved to suppress statements he made to the arresting officer after

being apprehended, arguing that they were the product of custodial interrogation elicited

without the warnings prescribed by Miranda v. Arizona, 384 U.S. 436 (1966). Tucker

maintained, in the alternative, that the coercive climate of the arrest and the experience of

being handcuffed rendered his post-arrest statements inadmissible and subject to

suppression.

       Tucker’s counsel notes that this motion was terminated as moot by Tucker’s guilty

plea. A defendant’s unconditional, knowing and voluntary guilty plea acts as a waiver of

non-jurisdictional defects, Washington v. Sobina, 475 F.3d 162 (3d Cir. 2007), including

waiver of pre-trial claims that police illegally seized evidence or elicited inculpatory

testimony without first administering Miranda warnings, Tollett v. Henderson, 411 U.S.

258, 267 (1973)). The challenge to statements made while in custody was waived by the

guilty plea and is not appealable.

       Even if the suppression motion had not been foreclosed from appellate review by

the guilty plea, the motion would fail on its merits. The record shows that Tucker was

not subject to interrogation from police at the time he made the inculpatory statements;




                                              7
instead, he spontaneously volunteered his reason for running from police. A motion to

suppress his statements would, therefore, be frivolous.

                             D. Reasonableness of Sentence

       Finally, Tucker may challenge the reasonableness of the sentencing, including the

imposition of a fifteen-year sentence under 18 U.S.C. § 924(e).

       In evaluating an appeal of a sentence, we review the District Court’s sentencing

decision under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51

(2007); United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009). Procedurally, a

district court must (1) calculate a defendant’s sentence under the Sentencing Guidelines,

(2) formally rule on any departure motions and state on the record whether it is granting a

departure, and (3) exercise its discretion by considering the factors set forth in 18 U.S.C.

3553(a). See United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). If the sentence

was procedurally reasonable, this Court considers the substantive reasonableness of the

sentence based on the totality of the circumstances. See Tomko, 562 F.3d at 567 (citing

Gall, 552 U.S. at 51).

       At sentencing, Tucker made several objections to the PSR. Relying on

§ 4A1.2(2) 1 of the Sentencing Guidelines, he argued that two prior drug offenses were


       1
          Section 4A1.2(2) provides that “[p]rior sentences always are counted separately
if the sentences were imposed for offenses that were separated by an intervening arrest
(i.e., the defendant is arrested for the first offense prior to committing the second
offense). If there is no intervening arrest, prior sentences are counted separately unless
(A) the sentences resulted from offenses contained in the same charging instrument; or

                                              8
related cases, consolidated for hearing, and should be treated as one for the purpose of

computing his criminal history. Tucker also argued that these two convictions should not

be counted separately towards the three predicate offenses required for the application of

the ACCA. Tucker relied on the mistaken assertion that the two 2001 Pennsylvania state

court convictions, noted at paragraphs 27 and 28 of the PSR, occurred only eight days

apart. In fact, the crimes were separated by approximately sixteen months and were

properly counted as individual crimes for the purpose of criminal history points.

       With respect to the ACCA, this Court has adopted the “separate episodes” test for

the application of the statute, holding that “where the defendant receives multiple

convictions in a single judicial proceeding … the individual convictions may be counted

for the purposes of sentencing enhancement so long as the criminal episodes were distinct

in time.” 2 United States v. Schoolcraft, 879 F.2d 64, 73 (3d Cir. 1989) (citing United

States v. Towne, 870 F.2d 880, 889 (2d Cir. 1989)). Despite the fact that the two

convictions in question were consolidated for plea and sentence, the two state court

convictions occurred many months apart at “distinct points in time,” and were properly

counted as separate offenses.



(B) the sentences were imposed on the same day. Count any prior sentence covered by
(A) or (B) as a single sentence.”
       2
        This Court went on to say that its adoption of the “separate episode test” accords
with both the meaning of the unambiguous statutory language and the legislative intent
underlying the ACCA. United States v. Schoolcraft, 879 F.2d 64, 74 (3d Cir. 1989).



                                             9
       Tucker also sought a variance on fairness grounds. He maintained that the

statutory sentencing enhancement under § 924(e) should not be applied because it over-

represents the seriousness of his criminal history. Tucker suggested that the proper

course of action for sentencing is to apply the mitigating provisions of U.S.S.G.

§ 4A1.2(a)(2) to the determination regarding whether he was lawfully designated as an

Armed Career Criminal. The District Judge considered this argument but found that the

applicability of the ACCA enhancement is determined under a separate test from that of

the Guidelines calculation for criminal history points under § 4A1.2(a)(2). See Brown v.

United States, 636 F.3d 674, 676 (2d Cir. 2011).

       Counsel is correct that § 4A1.2 neither mandates a lower sentence nor informs the

application of the ACCA. Therefore, the District Court did not err in interpreting the

Guidelines as independent of the statutorily prescribed minimum sentence. See Dorsey v.

United States, 132 S.Ct. 2321 (2012) (noting that maximum or minimum sentence set by

sentencing statutes trumps the Sentencing Guidelines, and a sentencing judge must

sentence an offender to at least the minimum prison term set forth in a statutory

mandatory minimum).

       Counsel also points out that it would be frivolous to claim that the District Court

erred in denying Tucker’s request for a downward variance because 18 U.S.C. § 3553

specifically prohibits sentencing courts from imposing sentences below a stated statutory

minimum, unless an explicit exception to the minimum sentence applies. United States v.




                                             10
Winebarger, 664 F.3d 388, 393 (3d Cir. 2011). See also United States v. Kellum, 356

F.3d 285, 289 (3d Cir. 2004). No such exception exists in this case.

       Prior to recognizing that a mandatory minimum sentence of 180 months was

required, the District Court correctly calculated Tucker’s sentence under the Sentencing

Guidelines, formally ruled on Tucker’s departure motions, stated his reasons on the

record, and considered the factors set forth in 18 U.S.C. § 3553(a). The District Court

sentence was procedurally and substantively sound and no nonfrivolous challenge to the

sentencing procedure exists.

                                     VI.    Conclusion

       We find that no nonfrivolous issues exist for consideration on appeal. We will

grant counsel’s motion to withdraw, pursuant to Anders, and affirm the judgment and

sentence of the District Court. Counsel is also relieved of any obligation to file a petition

for a writ of certiorari in the Supreme Court. See 3d Cir. L.A.R. 109.2(b).




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