                                                          NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                   No. 16-1023
                                  _____________

                        UNITED STATES OF AMERICA

                                         v.

                                 RASSOL CHINA,
                                               Appellant
                                  _____________

                 On Appeal from the United States District Court
                           for the District of New Jersey
                      District Court No. 2-15-cr-00203-002
                  District Judge: The Honorable Jose L. Linares

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                              September 29, 2016

             Before: AMBRO, SMITH, and FISHER, Circuit Judges

                              (Filed: October 4, 2016)

                             _____________________

                                    OPINION*
                             _____________________

SMITH, 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.
      A grand jury in the District of New Jersey returned an indictment against

Rassol China and four other individuals, charging China with conspiring to

distribute heroin in violation of 21 U.S.C. § 846 and distribution of heroin in

violation of 21 U.S.C. § 841(b)(1)(A) and 18 U.S.C. § 2. These charges were filed

after the police knocked and announced themselves at a heroin operation in a third

floor apartment, prompting China and three others to jump out of the apartment

window (the police apprehended the fifth individual before they entered the

apartment building).   China apparently fractured his heels in the jump, but

nonetheless was able to reach his car, drive directly toward a law enforcement

officer, almost hitting him, and elude capture. Law enforcement subsequently

apprehended China in the hospital where he was receiving treatment.

      Thereafter, China pleaded guilty pursuant to a written plea agreement that

included an appellate waiver.      A presentence report was prepared, which

determined that China was a career offender because of multiple controlled

substance convictions. See U.S.S.G. § 4B1.1. Although China initially challenged

the applicability of the career offender enhancement, defense counsel withdrew

that challenge at sentencing. The enhancement resulted in an offense level of 34

and a criminal history category of VI, yielding an advisory Guideline range of 262




                                        2
to 327 months.1       The District Court sentenced China to 262 months of

imprisonment.

      This timely appeal followed.2 Counsel submitted an Anders brief and a

motion seeking to withdraw as counsel. See Anders v. California, 386 U.S. 738,

744 (1967).     After reviewing the Anders brief, we are satisfied that counsel

“thoroughly examined the record in search of appealable issues” and adequately

“explain[ed] why the issues are frivolous.” United States v. Youla, 241 F.3d 296,

300 (3d Cir. 2001).

      China’s guilty plea limited the issues he could challenge on appeal to

whether he could be haled into court on the charges in the indictment, the validity

of his guilty plea, and the legality of the sentence imposed. See United States v.

Broce, 488 U.S. 563, 570-75 (1989). Counsel explained at length that the guilty

plea colloquy largely complied with the requirements of Federal Rule of Criminal

Procedure 11(b). Counsel appropriately noted that the colloquy did not advise

China, contrary to Rule 11(b)(1)(H)’s directive, of the maximum possible penalty

of life imprisonment. This omission, counsel explained, would not warrant setting

aside China’s conviction because plain error review applied under United States v.


1
  Before the PSR applied the career offender enhancement, China’s offense level,
without the acceptance of responsibility adjustment, was 32 and his criminal
history category was VI.
2
  The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise
jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
                                        3
Vonn, 535 U.S. 55, 59 (2002), and the error did not affect China’s substantial rights

as the plea agreement explicitly set out the minimum and maximum sentence at

play. The government agreed that China was well aware of the statutory maximum

of life imprisonment, noting it was set forth in his plea agreement, as well as in a

document entitled “Application for Permission to Enter Plea of Guilty” that China

signed after reviewing it with counsel. We agree that this omission in the plea

colloquy did not affect China’s substantial rights.

      Defense counsel also recognized in the Anders brief that China’s plea

agreement contained an appellate waiver. The government acknowledged that the

colloquy with regard to the appellate waiver was deficient in certain respects and

elected not to enforce the waiver. 3 Because the government did not invoke the

appellate waiver, we need not examine whether the waiver was valid and bars our

review. See United States v. Goodson, 544 F.3d 529, 535 (3d Cir. 2008). We note,

however, that even if the appellate waiver were unenforceable, that would result in

setting aside only the waiver (not the District Court’s judgment) and removing any

bar to our review. Id. at 541.

      Having concluded there is no basis for setting aside China’s guilty plea, we

turn to the legality of China’s sentence, which is reviewed for an abuse of


3
  Indeed, China’s pro se submission, which he filed pursuant to Third Circuit
L.A.R. 109.2(a), also notes there was error in the District Court’s review of the
terms of the appellate waiver.
                                          4
discretion.   United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009).          We

conclude that the District Court did not abuse its discretion in sentencing China to

262 months of imprisonment.

      Counsel noted that the District Court arguably erred in applying an

enhancement for obstruction of justice under U.S.S.G. § 3C1.2 because that

enhancement was not contemplated as part of the plea agreement.4 Nonetheless,

counsel acknowledged that application of this enhancement does not entitle China

to relief. We agree. The § 3C1.2 obstruction of justice enhancement affected only

the total offense level of 32, which was rendered inoperative once it was

determined that the offense level from the career offender table was “greater than

the offense level otherwise applicable.” U.S.S.G. § 4B1.1(b). Thus, the District

Court did not err in calculating the Guideline range under the career offender

guideline. Nor do we discern any procedural error as there were no motions by

China for the District Court to rule upon and the Court fully considered the

argument for a downward variance. The within-Guideline sentence, given the

Court’s explanation for the sentence imposed, was not substantively unreasonable.

4
  We note that China’s pro se submission also took issue with the propriety of the
obstruction of justice enhancement. In his view, application of the enhancement
constituted a breach of the plea agreement. Because it is the District Court that
determines the applicable Guideline range, the government did not breach the plea
agreement. Indeed, the plea agreement advised that “[t]he sentence to be imposed
. . . is within the sole discretion of the sentencing judge” and that the prosecution
was not making “any representation or promise as to what guideline range may be
found by the sentencing judge.”
                                         5
      For the reasons set forth above, we will affirm the judgment of the District

Court. Because our own independent review of the record fails to reveal any

nonfrivolous issues for appeal, we will grant counsel’s motion to withdraw and

affirm the judgment of the District Court. We certify that the issues presented in

the appeal lack legal merit and thus do not require the filing of a petition for writ of

certiorari with the Supreme Court. 3d Cir. L.A.R. 109.2(b).




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