                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 11-1551
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                               RUBEN RODRIGUEZ,
                                                Appellant
                            __________________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                       (D.C. Criminal No. 2-09-cr-00695-001)
                     District Judge: Honorable Petrese B. Tucker
                           __________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 20, 2012

             Before: VANASKIE, BARRY and CUDAHY,* Circuit Judges

                                 (Filed: June 26, 2012)
                                    _____________

                                      OPINION
                                    _____________

VANASKIE, Circuit Judge.

      Ruben Rodriguez pled guilty to one count of attempted possession with intent to

distribute more than 500 grams of cocaine in violation of 21 U.S.C §§ 846, 841(a)(1), and

      *
       Honorable Richard D. Cudahy, Senior Circuit Judge for the United States Court
of Appeals for the Seventh Circuit, sitting by designation.

                                           1
(b)(1)(B). The United States District Court for the Eastern District of Pennsylvania

sentenced him to 262 months‟ imprisonment, followed by eight years‟ supervised release.

Rodriguez filed a timely pro se notice of appeal. We appointed counsel who

subsequently moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967),

asserting that all potential grounds for appeal are frivolous. Rodriguez filed a pro se brief

in response. For the reasons that follow, we will affirm the judgment and sentence of the

District Court and grant the motion to withdraw.

                                              I.

       The pertinent facts may be stated succinctly. In September 2009, United States

Postal Inspectors intercepted a package sent from Puerto Rico to Philadelphia that

contained a little more than two kilograms of cocaine. The Postal Inspectors replaced the

cocaine with an inert substance, resealed the package along with a device that would

signal when the parcel was opened, and had it delivered per its address, where Rodriguez

signed for it on September 4, 2009. Upon being alerted that the package was opened

soon after it was delivered, law enforcement agents arrived at the delivery address, where

they encountered Rodriguez and another male. Rodriguez fled and was apprehended

after a rooftop chase. These facts formed the predicate for the one-count indictment

charging possession with intent to distribute in excess of 500 grams of cocaine.

                                              II.

       The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We

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



                                             2
       Counsel may seek to withdraw from representation if, “after a conscientious

examination” of the record, Anders, 386 U.S. at 744, he or she is “persuaded that the

appeal presents no issue of even arguable merit.” 3d Cir. L.A.R. 109.2(a). If we concur

with this assessment, we “will grant counsel‟s Anders motion, and dispose of the appeal

without appointing new counsel.” Id. We exercise plenary review over an Anders

motion. See Penson v. Ohio, 488 U.S. 75, 82-84 & n.6 (1988).

       When presented with an Anders brief, our inquiry is two-fold: “(1) whether

counsel adequately fulfilled [Third Circuit Local Appellate Rule 109.2(a)‟s]

requirements; and (2) whether an independent review of the record presents any

nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). The

Anders brief must “satisfy the court that counsel has thoroughly examined the record in

search of appealable issues,” and also “explain why the issues are frivolous.” Id. While

“[c]ounsel need not raise and reject every possible claim . . . at a minimum, he or she

must meet the „conscientious examination‟ standard.” Id. If we find that “the Anders

brief initially appears adequate on its face,” in the second step of our analysis we will

“confine our scrutiny to those portions of the record identified by . . . [the] Anders brief,”

as well as “those issues raised in Appellant‟s pro se brief.” Id. at 301.

       Counsel identifies two potentially appealable issues: (1) that Rodriguez‟s guilty

plea was not entered knowingly and voluntarily; and (2) that the District Court‟s sentence

was unreasonable. Counsel concludes that each issue is frivolous on appeal. Our

independent review of the record confirms counsel‟s assessment that there are no non-

frivolous issues for appeal.

                                              3
                                              III.

       Rule 11 of the Federal Rules of Criminal Procedure sets forth the requirements for

the entry of a valid guilty plea, including that the defendant understands the charges

against him, the rights he waives by pleading guilty, and the maximum penalty. See Fed.

R. Crim. P. 11. For the most part, the record does reflect that the Court conducted an

extensive plea colloquy that complied with the requirements of Rule 11. Indeed, the

Court ensured that the plea was voluntary, and that Rodriguez understood the charges

against him, the rights he waived by pleading guilty, and the maximum penalty.

       Yet, there is a discernible error with respect to the requirement to advise a

defendant about the applicability of the sentencing guidelines. Under Rule 11(b)(1)(M),

a court must inform the defendant that “in determining a sentence, the [court is obliged]

to calculate the applicable sentencing-guideline range and to consider that range, possible

departures under the Sentencing Guidelines, and other sentencing factors under [§

3553(a)].” Prior to accepting his plea, the Court discussed penalties but did not address

the guidelines. It explained the maximum penalty that would apply to a defendant with

no prior felony drug offenses, and then stated: “It is the government‟s position that you

have one or more prior felony drug convictions and therefore, the maximum penalty is a

mandatory minimum of 10 years imprisonment with a maximum of life in prison.” (A.

21.) Immediately after the Court accepted his plea, the Government notified the Court

that it had not “discussed the sentencing guidelines with [Rodriguez].” (A. 29.) The

Government noted that “[i]n this case the guidelines are significant because of the career

offender status,” and explained: “We have the 10 year mandatory minimum, but the

                                             4
guidelines themselves because of the career offender status would take the defendant to

360, 360 months or 30 years to life.” (A. 29-30.) The Court then confirmed that

Rodriguez understood this point and had discussed the guidelines with counsel, and

advised him that the Court was required to consider the guidelines in determining his

sentence. Rodriguez stated that he understood each of these points, and had no questions

about the application of the guidelines.

       In his pro se brief, Rodriguez asserts that “counsel failed to raise the issue that the

court clearly violated [his] rights by accepting his plea prior to advising him that he was

designated as a career offender . . . and inquiring as to whether [he] desired to withdraw

his plea based on that fact.” (Rodriguez Br. at 2.) He argues that his plea colloquy was

defective because the Court “failed to advise him that based on the designation of career

offender under U.S.S.G. 4B1.1, [he] could have withdrawn his plea.” (Id. at 2-3.) He

further explains that he “believed that he could not move to withdraw his plea since the

Court already accepted his plea,” and asserts that he “would have changed his plea had he

known he had been designated as a career offender,” but concedes that his “present term

and the potential term which he could receive following a jury conviction is virtually the

same.” (Id.)

       To the extent Rodriguez maintains that the Court erred by failing to inform him of

his career offender status, this argument is meritless, as Rule 11 does not require courts to

inform defendants of their career offender status. See Fed. R. Crim. P. 11. This

argument, however, does suggest a related, potentially colorable claim that counsel did

not raise in his brief: that Rodriguez‟s plea was not entered knowingly because the Court

                                              5
failed to advise him about the guidelines until after it had accepted his plea, and did not

give him an opportunity to withdraw it based on that information. Although counsel‟s

Anders brief fails to raise this claim, we conclude that it is frivolous.

       When a defendant does not object to an inadequate plea colloquy at the hearing, he

must demonstrate plain error, which “requires that there must be (1) error, (2) that is plain

or obvious, and (3) that affects a defendant's substantial rights. „If all three conditions are

met, an appellate court may then exercise its discretion to notice a forfeited error, but

only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of

judicial proceedings.‟” United States v. Goodson, 544 F.3d 529, 539 (3d Cir. 2008)

(quoting Johnson v. United States, 520 U.S. 461, 467 (1997)).

       The facts reflect an error that is plain, satisfying the first two elements. Rule 11

provides that a court must inform the defendant about the applicability of the sentencing

guidelines “[b]efore the Court accepts a plea of guilty.” Fed. R. Crim. P. 11(b)(1). The

purpose of a Rule 11 colloquy is to ensure that defendants are adequately informed before

they plead guilty, in order to give them an opportunity to decline to plead in light of the

consequences. Here, the Court‟s failure to inform Rodriguez about the guidelines until

after it accepted his plea deprived him of this opportunity. This is an error that is plain

and obvious.

       In order to demonstrate that this defect affected substantial rights, “a defendant

who seeks reversal of his conviction after a guilty plea, on the ground that the district

court committed plain error under Rule 11, must show a reasonable probability that, but

for the error, he would not have entered the plea.” United States v. Dominguez Benitez,

                                               6
542 U.S. 74, 83 (2004). In other words, Rodriguez has the burden of demonstrating

prejudice: that “the outcome of the proceedings would have been different,” meaning that

“he would, in fact, have pled not guilty and gone to trial.” United States v. Dixon, 308

F.3d 229, 234-35 (3d Cir. 2002). In determining whether an error affected substantial

rights, we may consider the whole record, and not just the transcript of the plea colloquy.

United States v. Vonn, 535 U.S. 55, 59 (2002).

       We do not believe that Rodriguez could establish that the Court‟s Rule 11

violation prejudiced his substantial rights. His claim that he “would have changed his

plea had he known he had been designated as a career offender” is unavailing because the

Court had no obligation to inform him of his career offender status. (Rodriguez Br. at 3.)

Moreover, we do not think he could demonstrate that he would have gone to trial had he

been informed of the guidelines before entering his plea or, in the alternative, that he

would have withdrawn his plea after learning this information, had he been given the

opportunity. Since Rodriguez stated that he understood the guidelines, had discussed

them with his lawyer, and had no questions about their application, we do not think there

is a reasonable probability that this information impacted his decision to plead guilty.1

See Dominguez Benitez, 542 U.S. 74 (finding no prejudice where the defendant already

knew the omitted information through other means).

       1
         Rodriguez appears to claim that he did not understand that the guidelines applied,
asserting: “The Court confused [him] by advising him that his sentence would be
determined by the guidelines, which [he] believed that he was going to receive the (10)
year mandatory minimum, as advised by counsel, rather than, receive an enhanced
sentence as a career offender.” (Rodriguez Br. at 2.) His statement at the plea colloquy
that he did understand the guidelines and had no questions about their application,
however, was sufficient for the purposes of Rule 11.
                                              7
       Since Rodriguez was aware that the guidelines applied before he entered his plea,

we find that he was not prejudiced by the Court‟s error. Discerning no other error in the

Court‟s plea colloquy, we agree with counsel‟s conclusion that there is no non-frivolous

claim that Rodriguez‟s plea was invalid.

                                              IV.

       Second, we also agree with counsel‟s assessment that there are no non-frivolous

challenges to the legality of the sentence. Counsel identifies three potentially appealable

matters.

       The first potentially appealable matter concerns the District Court‟s adherence to

the requirements of Fed. R. Crim. P. 32. We find that the Court fully complied with the

requirements of Rule 32. The record reflects that the Court afforded Rodriguez and his

defense counsel an opportunity to speak and present evidence, and gave the government

an opportunity to address the Court about the appropriate sentence. Additionally, the

Court informed Rodriguez of his right to appeal his conviction and sentence. We

therefore agree with counsel‟s conclusion that there are no non-frivolous issues that could

be raised with respect to Rule 32.

       The second potentially appealable matter concerns the procedural soundness of the

sentencing decision. District Courts must follow a three-step process in imposing a

sentence: (1) correctly calculate the advisory guidelines range; (2) formally rule on any

departure motions; and (3) consider all of the § 3553(a) factors and make an

individualized assessment of the proper sentence based on the facts. United States v.

Lofink, 564 F.3d 232, 237-38 (3d Cir. 2009). Our review of the record discloses no error

                                             8
in the calculation of Rodriguez‟s advisory guidelines imprisonment range of 262 to 327

months based on his status as a career offender. In this regard, Rodriguez‟s complaint

that his offense level should have been reduced based upon a minimal role in the

underlying criminal conduct is unavailing, because such an adjustment is not available

for a person covered by the career offender guidelines, such as Rodriguez. See United

States v. Johnson, 155 F.3d 682, 683-84 (3d Cir. 1998).

       Rodriguez moved for a downward departure and/or a variance pursuant to

U.S.S.G. § 4B1.1, arguing that his career offender status “over represent[ed]” his criminal

history, based on the fact that most of his prior offenses were minor street-level drug

offenses. (A. 34.) The Court denied the request for a downward departure and found

there was no basis for a variance. Since the Court‟s refusal to grant a departure is a

discretionary decision, it is unreviewable on appeal. United States v. Cooper, 437 F.3d

324, 332-33 (3d Cir. 2006). Furthermore, the Court‟s refusal to grant a career criminal

variance pursuant to U.S.S.G. § 4A1.3(b) is not subject to appellate review unless the

record “reflects that the district court was not aware of or did not understand its discretion

to make such a departure.” United States v. Grier, 585 F.3d 138, 141 (3d Cir. 2009)

(citation and internal quotations omitted). The record in this case does not suggest that

the Court was unaware of its discretion to depart; to the contrary, it expressly declined to

depart because it found that “the career criminal status that [Rodriguez] has was earned.

And there is no overrepresentation of his criminal history.” (A. 77.)

       Finally, the record reflects that the Court did consider the § 3553(a) factors. The

Court listened to Rodriguez‟s arguments with respect to these factors, and referenced

                                              9
some of these factors when explaining its sentence, noting in particular the danger that

Rodriguez posed and the importance of protecting citizens. The fact that the Court gave a

sentence at the bottom of the advisory range—262 months—indicates that it gave some

weight to these factors.

       Finally, we also agree that Rodriguez has no non-frivolous argument that his

sentence is substantively unreasonable. A sentence is substantively unreasonable only if

“no reasonable sentencing court would have imposed the same sentence on that particular

defendant for the reasons the district court provided.” United States v. Tomko, 562 F.3d

558, 568 (3d Cir. 2009) (en banc). That standard is not met here. There is nothing in the

record to suggest that Rodriguez has any non-frivolous argument that his sentence was

substantively unreasonable.

                                             V.

       In conclusion, we find that counsel‟s Anders brief reflects a conscientious

examination of the record and adequately explains why each of the potentially appealable

issues is frivolous. Because our independent review of the record fails to reveal any other

non-frivolous grounds for direct appeal, we will affirm the judgment of conviction and

sentence, and grant counsel‟s motion to withdraw.




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