                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 18-3407
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                   JOSEPH JACKSON,
                                               Appellant
                                     _____________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. No. 2-14-cr-00274-001)
                      District Judge: Honorable Arthur J. Schwab
                                      ___________

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   January 27, 2020
                                     ___________

            Before: CHAGARES, RESTREPO, and BIBAS, Circuit Judges.

                                 (Filed: January 31, 2020)

                                       ___________

                                        OPINION*
                                       ___________




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

          Joseph Jackson appeals his sentence of 84 months of imprisonment and three years

of supervised release for possession with intent to distribute and distribution of heroin,

and his attorney moves to withdraw as counsel pursuant to Anders v. California, 386 U.S.

738 (1967). For the following reasons, we will dismiss the appeal as untimely and grant

the motion to withdraw.

                                                I.

          We write for the parties and so recount only the facts necessary to our decision.

Jackson was indicted for possession with intent to distribute and distribution of heroin in

violation of 18 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Jackson pleaded guilty and the

probation office calculated an advisory U.S. Sentencing Guidelines range of 151 to 188

months of imprisonment. Jackson stated on the record that he was satisfied with

counsel’s representation and that he understood his rights and still intended to plead

guilty.

          After pleading guilty, but before sentencing, Jackson filed a pro se motion to have

his initial trial counsel withdraw. Jackson claimed that his counsel failed to communicate

with him about his case and that his relationship with counsel could not be saved. The

District Court granted the motion to withdraw and appointed new counsel. At

sentencing, Jackson’s new counsel requested a downward departure from the Guidelines

range, contending that the career offender Guidelines overrepresented the seriousness of

Jackson’s criminal history. He also argued for a downward variance based on Jackson’s

relatively minor past offenses, difficult childhood, mental health issues, good behavior

                                                2
while incarcerated, and the risk of sentencing disparities. At the sentencing hearing,

Jackson stated on the record that he was satisfied with his second counsel’s

representation.

       The District Court sentenced Jackson to 84 months of imprisonment and three

years of supervised release. The plea agreement preserved Jackson’s right to appeal in

only three circumstances: (i) if the Government appealed; (ii) if his sentence exceeded

statutory limits; or (iii) if his sentence “unreasonably exceed[ed]” the Guidelines range.

Appendix (“App.”) 45.

       Four months after the appeal deadline passed, the District Court denied Jackson’s

pro se motion for a two-point reduction in his sentence. Three months later, the District

Court denied Jackson’s pro se “Motion to Appeal,” in which he asked for appointed

counsel to pursue an ineffective assistance of counsel (“IAC”) claim. Supplemental

Appendix 6–9. Two months after that, Jackson filed a pro se motion to vacate his

conviction under 28 U.S.C. § 2255. The District Court issued a notice under United

States v. Miller, 197 F.3d 644 (3d Cir. 1999), directing Jackson to decide whether to

move forward with his petition as written or file one all-inclusive petition under § 2255.

       On October 26, 2018, ten months after the appeal deadline, Jackson filed a pro se

“Delayed Notice of Appeal,” claiming that IAC caused the delay in filing. App. 1–5.

Jackson claimed that he had asked his second trial counsel to appeal but that counsel

never did so. The appeal was opened by this Court before the District Court could

address Jackson’s IAC claim under § 2255. Jackson’s second trial counsel filed a motion



                                             3
to withdraw. We granted the motion and appointed new counsel from the federal public

defender’s office.

       The Government filed a motion asking us to dismiss the appeal as untimely or

summarily affirm. We denied the motion. The parties then briefed the issues. The

Government argues that Jackson’s appeal is untimely under Federal Rule of Appellate

Procedure 4(b) because Jackson filed it more than fourteen days after the entry of

judgment. Jackson’s new counsel filed an Anders brief and a motion to withdraw.

                                              II.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

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

                                             III.

       We first examine whether Jackson’s appeal was timely under 28 U.S.C. § 2107(b)

and Federal Rule of Appellate Procedure 4(b)(1)(A). Jackson had fourteen days from the

entry of judgment to appeal his sentence. Fed. R. App. P. 4(b)(1)(A). “Rule 4(b)’s

deadline is rigid,” and “[u]pon proper invocation[,] . . . when a notice of appeal is filed

out of time, we must dismiss the appeal.” Virgin Islands v. Martinez, 620 F.3d 321, 328–

29 (3d Cir. 2010). The Government may invoke Rule 4(b) “at any point up to and

including in its merits brief.” United States v. Muhammud, 701 F.3d 109, 111 (3d Cir.

2012). Jackson filed his “delayed notice of appeal” ten months after the entry of

judgment, well beyond Rule 4(b)’s fourteen-day time limit. The Government properly

invoked the rule in its merits brief. As a result, we will dismiss Jackson’s appeal as

untimely.

                                              4
                                            IV.

       We next address counsel’s motion to withdraw.1 When counsel submits an

Anders brief along with a motion to withdraw, our inquiry is two-fold: (1) whether

counsel adequately fulfilled the requirements under this Court’s Local Appellate Rule

109.2(a), which requires a brief identifying anything in the record that might support an

appeal; and (2) whether the Court’s own “independent review of the record presents any

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

an Anders brief is facially adequate, we confine our review to those parts of the record

identified by the brief. Id. at 301. The Court exercises plenary review over whether there

are any nonfrivolous issues. Simon v. Virgin Islands, 679 F.3d 109, 114 (3d Cir. 2012).

If there are no nonfrivolous issues, we will grant the motion to withdraw. See L.A.R.

109.2(a).

       Jackson’s counsel’s Anders brief is facially adequate, so we confine our review to

those parts of the record identified by the brief. See Youla, 241 F.3d at 301. Counsel for

Jackson identified three issues that could be raised on appeal: (1) whether Jackson’s

appellate waiver is valid and enforceable; (2) whether Jackson’s first two lawyers

provided ineffective assistance of counsel; and (3) whether Jackson’s sentence is

reasonable.




1
  Although we will dismiss Jackson’s appeal as untimely under Federal Rule of
Appellate Procedure 4(b), that rule is not jurisdictional, see Muhammud, 701 F.3d at 111,
so we can still dispose of the motion.
                                             5
                                               A.

       We review the enforceability of an appellate waiver by inquiring: (1) whether the

waiver was “knowing and voluntary”; (2) whether one of the specific exceptions in the

plea agreement allows appellate review of the issue presented by the defendant; and (3)

“whether enforcing the waiver would work a miscarriage of justice.” United States v.

Goodson, 544 F.3d 529, 536 (3d Cir. 2008) (quoting United States v. Jackson, 523 F.3d

234, 243–44 (3d Cir. 2008)).

       First, Jackson’s plea and appellate waiver were knowing and voluntary. Before

accepting the plea, the District Court held a hearing under Federal Rule of Criminal

Procedure 11(b). The District Court placed Jackson under oath, confirmed that he

understood the proceedings, explained Jackson’s rights and the consequences of pleading

guilty, and confirmed that Jackson read and understood the plea agreement, including the

appellate waiver. There is no evidence in the record that Jackson did not understand the

plea agreement or the appellate waiver.

       Second, none of the three express exceptions to the appellate waiver apply.

       Third, enforcing the waiver would not work a miscarriage of justice. In deciding

whether that exception applies, we examine the following factors: the “clarity of the

error, its gravity, its character (e.g., whether it concerns a fact issue, a sentencing

guideline, or a statutory maximum), the impact of the error on the defendant, the impact

of correcting the error on the government, and the extent to which the defendant

acquiesced in the result.” United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001)

(quoting United States v. Teeter, 257 F.3d 14, 25–26 (1st Cir. 2001)). The record reflects

                                               6
that Jackson understood the consequences of his plea, sentence, and appellate waiver, and

he was ultimately sentenced below the agreed Guidelines range.

                                              B.

         Counsel for Jackson also identified IAC as a potential ground for appeal. We

entertain IAC claims on direct review only where “the record is sufficient to allow

determination of ineffective assistance of counsel” so that “an evidentiary hearing to

develop the facts is not needed.” United States v. McLaughlin, 386 F.3d 547, 556 (3d

Cir. 2004) (quotation marks omitted). That is not the case here. The record is not

sufficiently developed to allow for an IAC determination on direct review. However,

Jackson may press his IAC claim and seek to develop the record in the District Court

pursuant to § 2255.

                                              C.

         Finally, Jackson’s counsel points to procedural errors committed by the District

Court at sentencing, and those errors’ effect on the reasonableness of Jackson’s sentence,

as a potential ground for appeal. A district court must follow three procedural steps in

sentencing: (1) calculate the correct Guidelines range, (2) rule on any departure motions,

and (3) exercise its discretion by considering the relevant 18 U.S.C. § 3553(a) factors.

United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). “[I]f the district court’s

sentence is procedurally sound, we will affirm it unless 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).

                                              7
       Jackson bears the burden of proving that there was a procedural error. Id. at 567.

Because he did not object to any procedural errors at the time of sentencing, we review

only for plain error. See United States v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014)

(en banc). Therefore, Jackson must establish that (1) there was an error, (2) the error was

“clear or obvious,” and (3) the error “affected the appellant’s substantial rights.” Puckett

v. United States, 556 U.S. 129, 135 (2009). Finally, if all three are satisfied, “the court of

appeals has the discretion to remedy the error — discretion which ought to be exercised

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

proceedings.” Id. (quotation marks omitted).

       Counsel for Jackson argues that the District Court (1) did not calculate the

Guidelines range on the record and (2) “did not explain how the departure affected the

Guidelines calculation or explicitly state whether it also granted a downward variance.”

Br. in Support of Mot. to Withdraw 39, 40. However, the Government and counsel for

Jackson both agree that neither procedural error affected the outcome. So do we.

       The District Court properly calculated the Guidelines range based on the stipulated

weight of 12.7 grams of heroin, for a base level of 14, see U.S.S.G. § 2D1.1(c)(13), and

applied the career offender enhancement based on Jackson’s prior state-level drug

convictions, see United States v. Glass, 904 F.3d 319, 324 (3d Cir. 2018) (holding that a

conviction under 35 Pa. Cons. Stat. § 780-113(a)(30) “may serve as a predicate offense to

a career-offender enhancement under [U.S.S.G.] § 4B1.1”). After a three-level reduction

for acceptance of responsibility, the resulting offense level was 29, for a Guidelines range

of 151 to 188 months of imprisonment. The record shows that Jackson’s initial counsel

                                               8
and his second counsel knew the applicable Guidelines range and that the parties agreed

to that range. The District Court considered the § 3553(a) factors, and it imposed an 84-

month sentence with three years of supervised release. Therefore, the purported error did

not affect the outcome, and Jackson is not entitled to relief. See Puckett, 556 U.S. at 135.

The District Court’s failure to rule explicitly on the departure motion also had no impact

on the outcome of the proceedings. The parties agreed to the applicable Guidelines

range, and the District Court ultimately imposed a much lower sentence than that called

for by the Guidelines.2

                                             V.

       For the foregoing reasons, we will dismiss the appeal as untimely and grant the

motion to withdraw. 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. Third Circuit L.A.R. 109.2(b).




2
  Regardless, the appellate waiver in Jackson’s plea agreement precludes review of the
reasonableness of the sentence. See Khattak, 273 F.3d at 563.
                                              9
