                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                     No. 13-1194
                                  ________________


                          UNITED STATES OF AMERICA

                                           v.

                                   PETER HALAS,

                                                      Appellant
                                  ________________

                     Appeal from the United States District Court
                             for the District of New Jersey
                    (D.C. Criminal Action No. 2-11-cr-00290-001)
                     District Judge: Honorable Faith S. Hochberg
                                  ________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 21, 2013

             Before: AMBRO, SMITH, and CHAGARES, Circuit Judges

                         (Opinion filed: November 26, 2013)

                                  ________________

                                      OPINION
                                  ________________

AMBRO, Circuit Judge

      Appellant Peter Halas pled guilty to knowingly possessing at least three images of

child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and was sentenced to 51
months’ imprisonment followed by supervised release. He appeals his sentence.

However, his attorney has moved to withdraw as counsel under Anders v. California, 386

U.S. 738 (1967), asserting that all potential grounds for this appeal are frivolous. Halas

has filed a pro se brief in response to counsel’s Anders brief. We grant the motion to

withdraw and affirm the judgment of sentence.1

I. Background

       In June 2010, in an interview with FBI agents, Halas admitted to searching for

child pornography and saving images to his hard drive. The agents searched Halas’s

home and, with his consent, seized his computer along with several compact disks and

external hard drives. FBI officials eventually discovered almost 3,000 images of child

pornography.

       Halas was charged with knowingly possessing at least three images of child

pornography in July 2010 and indicted on the same charge in April 2011. He was granted

pretrial release after his initial appearance in July 2011; release terms included

restrictions on his use of computers and the Internet. The District Court learned of

violations of those restrictions detected by monitoring software installed on Halas’s

computer, including his accessing websites not related to his employment, exporting data

to drives and cloud storage not monitored by the software, and opening an account on a

photo sharing website. In addition, Halas attended activities where minor children were

present without notifying their parents of the pending proceeding.


1
  The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over
this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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       In response to these violations, the District Court modified the terms of Halas’s

release to require 24-hour home confinement and prohibit him from using or possessing

computers anywhere. Immediately after the hearing at which these new conditions were

added, Halas violated the new terms by going to a public library. Based on this violation,

the Court held a hearing at which it revoked bail and ordered him detained.

       Halas entered a guilty plea in January 2012, and judgment was formally entered

the following month. In December 2012, the Court sentenced him to 51 months’

incarceration, the bottom of the Guidelines range as adjusted for acceptance of

responsibility, to be followed by five years’ supervised release. Halas timely appealed.

II. Discussion

       Under our rules, “[w]here, upon review of the district court record, counsel is

persuaded that the appeal presents no issue of even arguable merit, counsel may file a

motion to withdraw and supporting brief pursuant to Anders . . . .” 3d Cir. L.A.R.

109.2(a). In reviewing these motions, we conduct a two-part analysis: “(1) whether

counsel adequately fulfilled the rule’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).

       In his Anders brief, Halas’s lawyer in effect identifies two possible grounds for

appeal: (1) the validity of the plea bargain; and (2) the validity and reasonableness of the

sentence itself. Our review of the record confirms counsel’s assessment that there are no

nonfrivolous issues for appeal.



                                              3
       First, as Halas’s lawyer correctly argues, the plea bargain was entered into

knowingly and voluntarily, and the plea hearing fully complied with the requirements of

Federal Rule of Criminal Procedure 11. The Magistrate Judge conducted a lengthy and

thorough plea colloquy. After allowing Halas the opportunity to withdraw the plea if he

wished, the District Court entered a conviction based on the recommendations of the

Magistrate Judge.

       Second, as the Anders brief also argues, the sentence itself was both procedurally

valid and substantively reasonable. Under our precedent in United States v. Gunter, 462

F.3d 237 (3d Cir. 2006), a sentencing court must do three things. First, it must calculate

the Guidelines range. Id. at 247. Second, it must formally rule on any departure motions.

Id. Third, it must consider all relevant factors under 18 U.S.C. § 3553. Id. The Gunter

process was followed in this case. The District Court appropriately calculated the

Guidelines range, including granting Halas “very weak responsibility points” that

lowered the range from 70 to 80 months’ imprisonment down to 51 to 63 months’

imprisonment. No departure motions were filed. Halas requested a variance and raised

several issues for consideration as § 3553 factors, all of which the District Court

sufficiently addressed in the imposition of sentence. After its review of the § 3553

factors, the Court, to repeat, imposed a sentence at the bottom of the Guidelines range.

       None of the arguments Halas raises in his pro se supplemental response present

nonfrivolous issues on appeal. First, he argues that the District Court erred in not granting

a downward departure based on a psychological report. However, no such departure was

requested. Because we lack jurisdiction to consider a discretionary denial of a requested

                                             4
departure, see United States v. Denardi, 892 F.2d 269, 272 (3d Cir. 1989), we also lack

jurisdiction over an appeal for failure to grant an unrequested departure.

       Alternatively, Halas argues that failure to request such a departure was ineffective

assistance of counsel. It is the long-standing position of our Court that ineffective-

assistance-of-counsel claims should be addressed on collateral habeas review rather than

by direct appeal. See, e.g., United States v. Haywood, 155 F.3d 674, 678 (3d Cir. 1998).

We therefore express no opinion on Halas’s ineffectiveness claim at this time.

       Halas additionally argues that charges purportedly based on images downloaded in

1998 and 1999 were beyond the statute of limitations. This claim is waived by his

unconditional guilty plea. See Washington v. Sobina, 475 F.3d 162, 165 (3d Cir. 2007)

(noting that non-jurisdictional defects are waived by an unconditional guilty plea).

                                      *   *   *   *   *

       Counsel adequately fulfilled the requirements of Anders. We therefore grant the

motion to withdraw, affirm the judgment of sentence of the District Court, and dismiss

without prejudice the ineffective-assistance-of-counsel claim.




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