                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 18-1039
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                               JOSEPH R. PAIGE, IV,
                                           Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                          (D.C. Crim. No. 4-09-cr-00200-006)
                      District Judge: Honorable John E. Jones, III
                      ____________________________________

                      Submitted under Third Circuit L.A.R. 34.1(a)
                                 on November 5, 2018

           Before: HARDIMAN, KRAUSE and GREENBERG, Circuit Judges

                            (Opinion filed: November 8, 2018)



                                        OPINION *




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
KRAUSE, Circuit Judge.

       Joseph Paige, IV appeals the District Court’s revocation of supervised release and

the imposition of a below-Guidelines, six-month sentence followed by two years of

supervised release. Paige’s appellate counsel has submitted a brief under Third Circuit

LAR 109.2 and Anders v. California, 386 U.S. 738 (1967), seeking to withdraw because,

in his view, the appeal presents no issue of arguable merit. Having reviewed the record

and provided Paige with an opportunity to respond, we will grant counsel’s motion and

affirm the District Court’s sentence.

I.     Background

       After pleading guilty to one count of conspiracy to distribute crack cocaine in

violation of 21 U.S.C. § 846, Paige received a 60-month sentence and three years of

supervised release. That sentence reflected a considerable downward departure from the

applicable Guidelines range for the offense level stipulated in Paige’s plea deal and his

criminal history category.

       While on supervised release, Paige violated the conditions of his supervised

release by traveling outside of the District without authorization, failing to report a couple

of traffic stops to probation, and losing contact with his probation officer. After Deputy

Marshals arrested Paige for these Grade C violations, Paige appeared before a magistrate

judge, who explained each of the violations and his rights under Federal Rule of Criminal

Procedure 32.1. Specifically, the magistrate judge apprised Paige that he had a right to

counsel throughout the proceedings, to a preliminary hearing during which the

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government would have to call witnesses who would be subject to cross-examination,

and to a final revocation hearing where Paige could “raise any issues.” ECF No. 383 at

5-6. Paige then orally and in writing waived his right to a preliminary hearing. On

Paige’s motion, the District Court rescheduled the final revocation hearing to 36 days

after the filing of the petition.

       At the final revocation hearing, the District Court afforded Paige and his counsel

the opportunity to speak. Paige’s counsel conceded the Grade C violations, and

explained that—after speaking with his client about his desired disposition—Paige sought

a variance from the applicable Guidelines range of 8 to 14 months based on mitigating

circumstances. Paige then personally addressed the District Court, elaborating on the

events that culminated in his Grade C violations and requesting leniency. The District

Court explained at length why Paige’s conduct warranted a custodial sentence despite

these mitigating circumstances and imposed a below-Guidelines sentence of six months

followed by two additional years of supervised release. Paige filed a timely notice of

appeal, but his appellate counsel filed and served on his client an Anders brief seeking to

withdraw under LAR 109.2. Paige has not submitted any response to his counsel’s

motion.

II.    Discussion

       When considering an Anders motion, we apply a two-step inquiry: We first verify

that counsel’s brief reflects a careful review of the record for appealable issues and




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explains why any potential issues would lack merit. 1 United States v. Youla, 241 F.3d

296, 300 (3d Cir. 2001). If the Anders brief evinces this considered judgment, we use it

as a guide to evaluate whether the appeal presents any issue of arguable merit. Id. at 301.

       In his brief, Paige’s counsel identifies three potential issues on appeal, along with

citations to pertinent excerpts of the record and legal authorities: (1) whether the District

Court had jurisdiction to impose the sentence, (2) whether the revocation proceedings

complied with due process and Rule 32.1, and (3) the propriety of the District Court’s

sentence. Counsel further notes that any potential issue raised on appeal would be

subject only to plain error review for lack of a contemporaneous objection. See United

States v. Olano, 507 U.S. 725, 733 (1993). Considering the simplicity of the proceedings

below and the limited issues available on appeal from a revocation of supervised release,

see United States v. Jones, 833 F.3d 341, 343-44 (3d Cir. 2016) (a defendant cannot

collaterally attack his underlying conviction in a revocation proceeding), Paige’s counsel

has satisfied his obligations under LAR 109.2. Accordingly, we accept counsel’s Anders

brief and consider whether, under plain error review, any of the issues Paige’s counsel

identifies has arguable merit.




       1
        We have jurisdiction over this appeal under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).

                                              4
       A.     District Court’s Jurisdiction

       The District Court had jurisdiction over the underlying offense under 18 U.S.C. §

3231 and the authority to revoke Paige’s supervised release under 18 U.S.C. § 3583(e).

On this record, any challenge to the District Court’s jurisdiction would be frivolous.

       B.     District Court’s Compliance with Due Process and Rule 32.1

       A defendant facing a petition for revocation of supervised release does not enjoy

“the full panoply of rights” recognized in a criminal case, Morrissey v. Brewer, 408 U.S.

471, 499 (1972), but the Supreme Court has recognized certain basic due process rights,

which have been codified in Rule 32.1, see Fed. R. Crim. P. 32.1 advisory committee

note (1979). These rights include the ability to receive written notice of the charged

violations, to learn the evidence held against him, to present evidence (including calling

and cross-examining witnesses), and to provide a statement and any mitigating

information. See Fed. R. Crim. P. 32.1(b)(2). A defendant’s waiver of his rights under

Rule 32.1 must be “knowing and voluntary under a totality of the circumstances.” United

States v. Manuel, 732 F.3d 283, 291 (3d Cir. 2013) (citation omitted). No “magic words”

or specific colloquies are required, and the exchange need not be nearly as elaborate as a

Rule 11 plea. Id. (citation omitted); see Fed. R. Crim. P. 11.

       In this case, Paige received written notice of the alleged violations, the final

hearing was held within a reasonable time after the filing of the petition, and the District

Court provided Paige and his counsel the opportunity to speak. Ideally, before accepting

Paige’s guilty plea, the District Court should have reminded Paige that he was waiving

                                              5
his right to a formal revocation hearing under Rule 32.1(b)(2). See Manuel, 732 F.3d at

291. However, when informing Paige of his right to a preliminary hearing, the magistrate

judge had already discussed Paige’s right to present evidence, to call and cross-examine

witnesses, and to “raise any issues that you have at that final hearing.” ECF No. 383 at 5-

6. Later, at the final revocation hearing, Paige’s counsel confirmed that he had discussed

with his client “what outcome or . . . disposition he would like” before conceding guilt.

App. 23-24. Thus, under the totality of the circumstances, Paige cannot reasonably

dispute that he knowingly and voluntarily waived his right to a formal revocation hearing.

And even if he had established plain error, Paige could not show that such error affected

his substantial rights, given that he readily confessed during his allocution not only to

several of the alleged Grade C violations, but also to using a controlled substance, which

constituted yet another violation of the conditions of his supervised release.

       C.     Propriety of the District Court’s Sentence

       During sentencing, a district court must calculate the correct guidelines range, rule

on any departure motions, and determine an appropriate sentence under § 3553(a) factors,

including whether to vary from the Guidelines’ sentencing range. United States v.

Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). Here, the District Court identified

the correct Guidelines range, and then provided a detailed and personalized explanation

of its sentence under the relevant § 3553(a) factors. See id. (noting that a district court

need not specifically recite each § 3553(a) factor if the record makes clear that it took the

factors into account in sentencing).

                                              6
       As for the sentence’s substantive reasonableness, we must affirm unless “no

reasonable sentencing court would have imposed the same sentence on that particular

defendant for the reasons the district court provided.” Tomko, 562 F.3d at 568. The

District Court demonstrated considerable leniency by imposing a sentence two months

below the applicable Guidelines range. For Paige to argue that no reasonable jurist

would have imposed this below-Guidelines sentence would be frivolous.

III.   Conclusion

       For the aforementioned reasons, we will grant counsel’s Anders motion and affirm

the order of the District Court. Pursuant to LAR 109.2(b), we conclude that the issues

presented on this appeal lack legal merit and counsel need not file a petition for writ of

certiorari in the Supreme Court.




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