                                                                   NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       __________

                                       No. 17-1165
                                       __________

                            UNITED STATES OF AMERICA

                                             v.

                                 SYLVESTER MARTIN,
                                               Appellant
                                     __________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                        (D.C. Criminal No. 1-03-cr-00360-001)
                        District Judge: Honorable Yvette Kane

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  September 12, 2017

          BEFORE: CHAGARES, JORDAN, and NYGAARD, Circuit Judges


                                 (Filed: January 8, 2018)

                                       __________

                                        OPINION *
                                       __________


NYGAARD, 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.
       Sylvester Martin appeals the District Court’s order resentencing him to 50 months

imprisonment. Counsel for Martin has moved to withdraw and filed an Anders brief,

asserting that there are no nonfrivolous issues for appeal. See Anders v. California, 386

U.S. 738, 744 (1967). Martin did not file a pro se brief. We will affirm and grant

counsel’s motion to withdraw.

       In the Anders context, we first ask whether “counsel adequately fulfilled [L.A.R.

109.2's] requirements.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). We

next examine whether, after an independent review, the “record presents any

nonfrivolous issues.” Id. We examine not only whether counsel presents all issues that

may be appealed, but also whether counsel explains both the best legal arguments that

could be made and the faults with each that make them frivolous.

       On August 30, 1998, Harrisburg police responded to a call that shots had been

fired. Neighbors advised police that Martin discharged the gun. Police recovered a gun

and spent shell casings from his front porch. Ballistics tests confirmed the casings came

from this gun. Police arrested Martin, charging him with violating state law. He posted

bail and then never appeared for arraignment. Police arrested Martin in Virginia, and he

was extradited to Pennsylvania.

       Martin’s state court trial on the charges arising from the 1998 event ended in a

mistrial because the jury saw Martin in handcuffs. After state prosecutors referred the

case, the Federal Government indicted Martin on the charge of felon in possession of a

firearm, under 18 U.S.C. § 922(g). After a two-day trial, a jury convicted Martin of this


                                             2
crime. The District Court sentenced him, under the Armed Career Criminal Act, to 276

months imprisonment. 18 U.S.C. § 924(e). Martin appealed the judgment, but we

affirmed the conviction and sentence. United States v. Martin, 311 F. App’x 517 (3d Cir.

2008).

         In 2014, Martin filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C.

§ 2241, and it was dismissed. Following the Supreme Court’s decision in Johnson v.

United States, 135 S. Ct. 2551 (2015), we granted permission for Martin to file a

successive motion to correct his sentence under 28 U.S.C. § 2255. The District Court

considered the motion and ruled that, in light of Johnson, it must resentence Martin. The

Presentence Report recommended an offense level of 20 because of a prior conviction for

murder. Martin objected to this. The District Court agreed with Martin and lowered the

offense level to 16, with a criminal history category of VI. The result was a Guidelines

range of 46 to 57 months.

         The District Court sentenced Martin to 50 months without any supervised release.

It reached its decision after taking into account that Martin had already served 120

months, which exceeded the statutory maximum for his crime. It also addressed the 18

U.S.C. § 3553(a) factors, noting in particular Martin’s age and health. Martin appealed.

         Martin did not file a pro se brief. But counsel explains that Martin wants to focus

his appeal on the issues of wrongful conviction, his actual innocence, the jurisdiction of

the federal court to convict him, a challenge to his sentence based on the lack of a

competency evaluation, double jeopardy due to the state court mistrial, and a statute of

limitations issue regarding his federal indictment. As counsel correctly states, Martin

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was granted a successive Section 2255 motion to correct his sentence focused solely on

the impact of the Supreme Court’s ruling in Johnson to his sentence: issues considered

and ruled upon by the District Court. All of the other claims that Martin wants to raise

are beyond the scope of his motion and cannot be considered. 1

       We conclude that counsel has adequately fulfilled the requirements L.A.R. 109.2.

Counsel has not identified any non-frivolous appealable issues, and after conducting our

review, we also have concluded that this record does not ground any non-frivolous issues.

       For all of these reasons, we will affirm the order of the District Court and grant

counsel’s motion to withdraw.




1
  As counsel notes, given that all of these claims were addressed in his direct appeal of
the conviction, or his prior Section 2255 petition, Martin would have to demonstrate in a
separate filing a change in law or produce previously undiscovered evidence. He has not
done so.

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