                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      ___________

                                      No. 09-1221
                                      ___________

                            UNITED STATES OF AMERICA

                                             v.

                            JONATHON LEE CABALLERO,
                                    Appellant
                                  ___________

                     On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                         (D.C. Criminal No. 1-08-cr-00073-005)
                     District Judge: The Honorable Sylvia H. Rambo
                                      ___________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    May 20, 2010

         BEFORE: FUENTES, HARDIMAN, and NYGAARD, Circuit Judges.

                                  (Filed: June 17, 2010)

                                      ___________

                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

       Jonathon Caballero appeals the District Court’s judgment of conviction and

sentence. Counsel for Caballero has filed a brief, pursuant to Anders v. State of
California, 386 U.S. 738 (1967), claiming that this appeal presents no non-frivolous

issues, and seeking permission to withdraw as counsel in this case. Caballero also

submitted a pro se letter brief. For the reasons that follow we will affirm the District

Court’s judgment of conviction and sentence, and we will grant counsel’s motion to

withdraw.

         On September 2, 2008, Caballero pleaded guilty to attempted robbery, in violation

of 18 U.S.C. § 2113(a), and to possessing, brandishing, and discharging a firearm during

a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i)-(iii). The District Court

sentenced Caballero to a total of 177 months of imprisonment: 57 months for the

attempted robbery charge, and a consecutive term of 120 months for the firearm charge.

Finally, the District Court fined Caballero $1,500 and assessed him $200.

         Our examination of an Anders brief focuses upon whether counsel has both

thoroughly scrutinized the record for issues that could be appealed, and properly

explained why all such issues are wholly frivolous. We also review the record ourselves

to make an independent evaluation. United States v. Youla, 241 F.3d 296, 300 (3d Cir.

2001).

         On appeal, counsel notes that Caballero challenges the reasonableness of his

sentence. Yet, as counsel states, the record makes clear that the District Court considered

the plea agreement, the presentence report, and the factors enumerated in 18 U.S.C. §

3553(a). Pursuant to the joint stipulation of the parties, the District Court did not apply a



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five-level weapon enhancement, resulting in a total offense level of nineteen rather than

twenty-four. This was done to avoid a sentencing disparity among the defendants, which

was an unintended result of Caballero’s plea to attempted robbery. Moreover, the District

Court varied from the guidelines due to Caballero’s cooperation and his acceptance of

responsibility for the crime. The District Court sentenced him to 57 months, the low end

of the guideline range after the variance, for the attempted robbery charge and 120

months, the mandatory minimum, for the firearm violation. We conclude that the District

Court properly calculated the sentences. Finally, the District Court ordered Caballero to

pay $1,700, which included a $1,500 fine that was below the guideline range. From this

record, we agree with counsel that the District Court was reasonable.

       Counsel next addressed Caballero’s contention that, by sending him back to state

prison to complete previous sentences, the federal prison relinquished jurisdiction over

him. Caballero does not challenge the judgment or sentence against him here, but rather

asserts improper administration of the sentence. As a result, we agree with Caballero’s

counsel that the issue is improperly raised in this direct appeal.

       Finally, after counsel filed the Anders brief, Caballero filed a pro se letter brief.

Caballero appears to take issue with the 120-month sentence because he did not discharge

the firearm during the crime. Rather, it was an accomplice who shot the gun. While this

issue is essentially a reiteration of Caballero’s fairness arguments already articulated by

counsel, out of an abundance of caution we review it separately.



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       The record shows that the District Court explained, and Caballero acknowledged,

his criminal liability for the discharge of a firearm in furtherance of a crime of violence,

even though an accomplice shot the gun. Moreover, Caballero admitted to carrying a

firearm, and did not object to the prosecutor’s recitation of facts, which included a

statement that Caballero pointed a gun to the head of a bank teller and demanded money.

Finally, the District Court plainly stated to Caballero, more than once, that his plea of

guilty to discharging a firearm during a crime of violence carried a mandatory term of no

less than ten years of imprisonment. To the extent that Caballero is asserting that the 120-

month sentence is unreasonable, or that he was unaware of the consequences of his plea,

we conclude in light of the record that such claims are completely unsupported.

       After our review of counsel’s brief, Caballero’s pro se brief, and our independent

examination of the entire record we conclude that there are no non-frivolous appealable

issues in this case. Accordingly, we will affirm the District Court’s judgment of

conviction and sentence and, in a separate order, grant counsel's motion to withdraw.




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