                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 15-2256
                                     ______________

                            UNITED STATES OF AMERICA

                                             v.

                                    JOSE CALDERA,

                                           Appellant
                                     ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                           (D.C. No. 4:14-cr-00278-001)
                   District Judge: Honorable Matthew W. Brann
                                 ______________

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   December 8, 2015
                                   ______________

       Before: FUENTES, SHWARTZ, and VAN ANTWERPEN, Circuit Judges.

                                (Filed: December 8, 2015)

                                     ______________

                                        OPINION*
                                     ______________

SHWARTZ, Circuit Judge.

       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
       Jose Caldera was convicted of murdering his cellmate and sentenced to 262

months’ imprisonment, to run consecutively to the federal drug sentence he was serving

at the time of the offense. Caldera appeals. His appellate counsel argues that his appeal

presents no nonfrivolous issues and moves to withdraw under Anders v. California, 386

U.S. 738 (1967). We will grant the motion and affirm.

                                             I

       On May 2, 2010, while serving a 293-month federal drug sentence at the United

States Penitentiary in Lewisburg, Pennsylvania, Caldera strangled his cellmate to death.

Caldera pleaded guilty to a one-count Information charging him with second-degree

murder, in violation of 18 U.S.C. §§ 1111 and 7(3). At the plea hearing, the Government

informed the District Court that there was no written plea agreement, but the parties had

orally agreed that the Government would recommend a three-level reduction in Caldera’s

Guidelines offense level for acceptance of responsibility and a sentence at the top of the

Guidelines range, which it had estimated to be 262 months. Both Caldera and his counsel

indicated that this accurately reflected the agreement and estimated sentence.

       Before sentencing, the Probation Office submitted a Presentence Investigation

Report (“PSR”) recommending a Guidelines range of 210 to 262 months’ imprisonment,

based on a total offense level of thirty-five and criminal history category of III. The PSR

also recommended that because Caldera committed the offense while serving a separate

term of imprisonment, the new sentence should run consecutively to the undischarged


                                             2
term, consistent with U.S.S.G. § 5G1.3(a).1 Caldera did not object to the PSR.

       At Caldera’s sentencing hearing, he and his counsel stated that they had reviewed

the PSR and had no objections. Caldera’s counsel requested, however, that Caldera be

“give[n] . . . a concurrent sentence with some of the time he’s now serving,” due to the

fact that he has “undergone . . . severe deprivation” since the murder, including solitary

confinement. App. 40-41. Observing that Caldera committed a “heinous crime” while

serving a sentence for a drug offense, the District Court adopted the Guidelines

calculation set forth in the PSR, and imposed a within-Guidelines sentence of 262

months’ imprisonment, to run consecutively to the drug sentence Caldera was serving at

the time of the offense. App. 44. Caldera’s counsel filed an appeal on Caldera’s behalf

and a motion to withdraw, asserting that there are no nonfrivolous grounds for appeal.2

                                              II

                                              A

       “Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines the Supreme

Court promulgated in Anders to assure that indigent clients receive adequate and fair


       1
           Section 5G.1.3(a) of the Guidelines provides:

       If the instant offense was committed while the defendant was serving a
       term of imprisonment (including work release, furlough, or escape status)
       or after sentencing for, but before commencing service of, such term of
       imprisonment, the sentence for the instant offense shall be imposed to run
       consecutively to the undischarged term of imprisonment.

U.S.S.G. § 5G1.3(a).
      2
        We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                              3
representation.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Rule 109.2(a)

allows defense counsel to file a motion to withdraw and an accompanying brief pursuant

to Anders when counsel has reviewed the record and concluded that “the appeal presents

no issue of even arguable merit.” When counsel submits an Anders brief, we 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 (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000)). An issue is

frivolous if it “lacks any basis in law or fact.” McCoy v. Ct. of App. of Wisc., Dist. 1,

486 U.S. 429, 438 n.10 (1988).

       To determine whether counsel has fulfilled Rule 109.2(a)’s requirements, we

examine the brief to see if it: (1) shows that counsel has thoroughly examined the record

in search of appealable issues, identifying those that arguably support the appeal even if

wholly frivolous, Smith v. Robbins, 528 U.S. 259, 285 (2000); and (2) explains why the

issues are frivolous, Marvin, 211 F.3d at 780-81. If these requirements are met, the

Anders brief guides our review and we need not scour the record. See Youla, 241 F.3d at

300–01.

       Counsel’s Anders brief satisfies both elements, and an independent review of the

record reveals no nonfrivolous issues.3 First, the brief demonstrates a thorough

examination of the record and identifies potential issues concerning the District Court’s


       3
       Caldera was given the opportunity to file a pro se brief raising any additional
arguments, but did not do so.
                                             4
jurisdiction, the validity of Caldera’s guilty plea, and the reasonableness of his sentence.

Second, the brief explains why these issues are frivolous in light of the governing law.

Counsel’s Anders brief is therefore sufficient, and we will proceed to review the issues

counsel identified.

                                               B

       The first issue counsel identified is whether the District Court had jurisdiction to

enter the judgment of conviction and sentence. It is clear that it did. United States

District Courts have jurisdiction over offenses against the laws of the United States. 18

U.S.C. § 3231. Caldera was charged with second-degree murder at a federal prison in

violation of 18 U.S.C. §§ 1111 and 7(3), which is a federal offense. Accordingly, there

exist no issues of arguable merit concerning jurisdiction.

       The second issue counsel identified is whether Caldera’s guilty plea was valid

under the Constitution and Federal Rule of Criminal Procedure 11.4 The record shows it


       4
           Rule 11 requires that a district court advise the defendant, among other things:

       of the waiver of certain constitutional rights by virtue of a guilty plea, the
       nature of the charges to which he or she is pleading guilty, the “maximum
       possible penalty” to which he or she is exposed, the court’s “obligation to
       apply the Sentencing Guidelines [and] . . . discretion to depart from those
       guidelines under some circumstances,” and “the terms of any plea-
       agreement provision waiving the right to appeal or to collaterally attack the
       sentence.”

United States v. Schweitzer, 454 F.3d 197, 202-03 (3d Cir. 2006) (quoting Fed. R. Crim.
P. 11(b) (alterations in original)). The district court must also “ensure that the defendant
receives these caveats, understands them, and still wishes of his or her own volition to
plead guilty.” Id.; see also Boykin v. Alabama, 395 U.S. 238, 242-44 (1969).
                                               5
was. During the plea hearing, the District Court confirmed that Caldera understood the

second-degree murder charge against him and did not dispute the facts the Government

would offer to prove each element of the crime. The District Court explained to Caldera

that he could choose to plead not guilty and proceed to trial with the assistance of counsel

who could cross-examine witnesses, and that the jury would presume him innocent,

unless and until the Government proved his guilt beyond a reasonable doubt; that he was

pleading guilty to charges that carried a statutory maximum term of life imprisonment

and a $250,000 fine; and that, in determining a sentence, the court would refer to the

Guidelines, but could depart from them. The District Court also confirmed with Caldera

and his counsel the terms of the oral agreement they had reached with the Government,

and specifically found that Caldera pleaded guilty knowingly and voluntarily, with an

understanding of his rights and the consequences of his plea. Therefore, there is no issue

of arguable merit with respect to the validity of Caldera’s plea.

       The final issue counsel identified is whether Caldera’s sentence is procedurally

and substantively reasonable. See United States v. Tomko, 562 F.3d 558, 566 (3d Cir.

2009) (en banc). With respect to procedural reasonableness, the District Court followed

this Court’s three-step sentencing process by (1) calculating the applicable Guidelines

range, (2) noting there were no departure motions, and (3) meaningfully considering all

relevant 18 U.S.C. § 3553(a) factors. See United States v. Gunter, 462 F.3d 237, 247 (3d

Cir. 2006). As to the third step, the District Court gave “rational and meaningful”

consideration to the § 3553(a) factors, Tomko, 562 F.3d at 568 (quoting United States v.
                                             6
Grier, 475 F.3d 55, 571 (3d Cir. 2007) (en banc)), noting, among other things, “the nature

and circumstances of the offense and the history and characteristics of . . . Caldera,”

including the drug crime for which he was serving a lengthy sentence at the time of the

murder, and concluded that “[t]aking the life of another is a heinous crime,” justifying “a

sentence at the top of the advisory [G]uideline[s] range.” App. 44. Thus, the sentence

was procedurally reasonable.

       The sentence was also substantively reasonable. Given the nature of the offense

and the fact it was committed while Caldera was in prison, we cannot say that “no

reasonable sentencing court would have imposed” Caldera’s within-Guidelines sentence

to run consecutively to his undischarged drug sentence. Tomko, 562 F.3d at 568. Thus,

any challenge to the substantive reasonableness of Caldera’s sentence would lack merit.5

                                             III

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




       5
        While district courts have discretion to order that a defendant’s federal sentence
run consecutively to or concurrently with an undischarged sentence previously imposed,
see 18 U.S.C. § 3584, the Guidelines specifically provide that if an offense is committed
while a defendant is serving a separate term of imprisonment, “the sentence for the [new]
offense shall be imposed to run consecutively to the undischarged term of
imprisonment.” U.S.S.G. § 5G1.3(a). Although the Guidelines are advisory, sentencing
courts must consider them, as they continue to provide guidance. United States v. King,
454 F.3d 187, 196 (3d Cir. 2006). Because Caldera committed the murder while serving
a separate term of imprisonment, and hence his conduct falls squarely within section
5G1.3(a), it cannot be argued that the District Court erred in declining to impose a
concurrent sentence.
                                              7
