                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 16-3106
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                               GREGORY WESTBERRY,
                                                 Appellant
                                   _____________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                               (D.C. No. 1-11-cr-00355-001)
                      District Judge: Honorable Renee Marie Bumb
                                      _____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    June 5, 2017

     Before: CHAGARES, GREENAWAY, JR., and VANASKIE, Circuit Judges.

                                  (Filed: August 9, 2017)
                                       ____________

                                        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.

       Gregory Westberry was sentenced to 12 months of imprisonment and two years of

supervised release after pleading guilty to violating the terms of his supervised release

from a prior conviction. On appeal, his counsel moved to withdraw pursuant to Third

Circuit Local Appellate Rule 109.2 and Anders v. California, 386 U.S. 738 (1967). We

will grant permission for counsel to withdraw and affirm the District Court’s judgment.

                                             I.

       While Westberry was on supervised release for a prior conviction, 1 the United

States Probation Office filed a Petition for Warrant or Summons for Offender under

Supervision, requesting that the District Court revoke Westberry’s supervised release

based on three alleged violations. The first and third charged violations were based on

Westberry’s arrests dated January 6 and March 8, 2016. The second was for Westberry’s

use of narcotics, based on a drug test on February 17, 2016 that tested positive for heroin.

       Westberry appeared before the District Court on June 27, 2016. Prior to the

hearing, Westberry and the Government had discussed an agreement where Westberry

would plead guilty to the second violation charge and the Government would recommend

12 months of imprisonment with no supervised release and dismiss the first and third

violation charges. The Probation Office, however, took the position that Westberry’s

sentence should include a term of supervised release. Westberry’s attorney advised the



1
  On June 20, 2012, Westberry was sentenced to sixty-four months of imprisonment and
three years of supervised release after pleading guilty to violating 28 U.S.C. § 922(g)(1),
Possession of a Firearm by a Convicted Felon.
                                             2
court that the defendant “understands it will then be up to your Honor to decide how to

resolve that.” App. 28.

       Westberry’s attorney then answered in the affirmative to a series of questions

posed by the court regarding whether Westberry was apprised of certain issues. Those

issues included the consequences of pleading guilty, the waiver of rights, the sentencing

exposure, the advisory nature of the federal Sentencing Guidelines, and that,

notwithstanding the Government’s recommendation, it was “entirely up to the Court as to

the sentence that’s to be imposed.” App. 28-31. The court conducted a colloquy directly

with Westberry, during which he confirmed that he understood the charges against him,

the rights that he would give up by pleading guilty, and the sentencing exposure; that he

was pleading guilty voluntarily; and that he was satisfied with his attorney. Westberry

pled guilty to the second violation charge and allocuted as to the nature of the violation

(using heroin while on supervised release while at Delaney Hall, a halfway house).

       With the consent of the parties, the District Court proceeded to sentencing.

Westberry’s attorney explained to the court the basis for the 12-month sentence jointly

recommended by the Government and the defense. He noted that although the original

basis for the second violation charge was a sole “dirty” urine sample, the proposed

sentence was at the top of the advisory Sentencing Guidelines of seven to 13 months. He

explained:

       We’ve agreed to it for a couple of reasons. Number one, we understand
       . . . other charges that [will] have been dismissed as to Mr. Westberry. And
       number two, in the hope that the Court will consider the fact that in
       imposing what we consider to be a harsh sentence for a one dirty urine


                                             3
       violation, the Court will dispense with the requirement of further
       supervised release, which is also part of the joint recommendation.

App. 43. The Government added that “although this is Mr. Westberry’s first violation[,]

it is important to note that he was only on supervised release for approximately eight

weeks before his first arrest that forms the basis for violation number one.” App. 48.

The Government also noted that Westberry’s prior sentence was the result of a “very

significant” downward departure and that Westberry admitted to using heroin while

residing at a halfway house “specifically for inmates who have substance abuse issues.”

App. 49.

       The District Court concluded that, after considering the facts of the case and the

18 U.S.C. § 3553(a) factors, a 12-month term of imprisonment and a two-year term of

supervised release was appropriate. The court noted as relevant considerations

Westberry’s extensive criminal history and drug use, the short period of time between the

start of the previous term of supervised release and the alleged violation, and the fact that

he used heroin at a halfway house. The court concluded:

       I think that by not continuing Mr. Westberry on supervised release I don’t
       think it promotes respect for the law, number one. I think that someone
       who -- he should have to prove himself that he can do this. That’s what
       supervision is all about. He should be deterred. And if he’s kept on
       supervised release, when he gets out he’ll be deterred because he’ll know if
       he violates again he’ll be back in the same boat, he’ll be back facing jail
       time. And that will serve as a very valuable deterrent for him. The public
       will be protected by the sentence that I’m about to impose.

App. 54. While the sentence was being announced, Westberry attempted to request that

the court sentence him to 24 months of imprisonment instead of 12 months, and no

supervised release. The court declined.

                                              4
       Westberry timely appealed. His attorney requests to withdraw because there is no

viable basis for appeal.

                                             II. 2

       Under Anders v. California, court-appointed counsel may — after finding any

appeal “to be wholly frivolous” after careful examination of the record — file a brief

“advis[ing] the Court and request[ing] permission to withdraw” and identifying “anything

in the record that might arguably support the appeal.” 386 U.S. at 744. In evaluating a

motion to withdraw, the Court’s inquiry is twofold: “(1) whether counsel adequately

fulfilled the [Court’s] rule’s requirements” under Third Circuit Local Appellate Rule

109.2(a); 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 withdrawing counsel’s brief must “satisfy the court that counsel has

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

issues are frivolous.” Id. An appeal is frivolous if “the appeal lacks any basis in law or

fact.” McCoy v. Court of Appeals of Wis., 486 U.S. 429, 438 n.10 (1988). If the Anders

brief “appears to be adequate on its face, the proper course is for the appellate court to be

guided in reviewing the record by the Anders brief itself. A complete scouring of the

record is unnecessary.” Youla, 241 F.3d at 300-01.

       We conclude that counsel has fulfilled the requirements of Anders by making a

thorough examination of the record. See id. at 299. Westberry’s counsel submitted a


2
 The District Court had jurisdiction under 18 U.S.C. § 3231 and 18 U.S.C. § 3583(e).
This Court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                              5
brief that reviewed the record and identified potentially appealable issues, concluding that

none are legitimate. This Court has likewise failed to identify any non-frivolous issues

after an independent review of the record. Westberry did not file a pro se brief in

response.

       We first examine Westberry’s guilty plea. The District Court followed all the

steps required by Fed. R. Crim. P. 11: placing Westberry under oath, addressing him

personally, ensuring through questioning that Westberry was competent and that he was

entering the plea of his own free will, advising him of his trial rights, and warning him

that entry of a guilty plea would lead to waiver of a hearing before the judge and other

rights. The District Court also addressed the nature of the offense, the potential penalties,

and the advisory Sentencing Guidelines. The District Court specifically advised

Westberry of the fact that the court has discretion to impose a different sentence from the

plea agreement. Westberry’s attorney also acknowledged that the ability to impose a

different sentence — in this case, a term of supervised release — was within the

discretion of the court. Finally, the court addressed Westberry personally and Westberry

confirmed the factual basis for the violation of supervised release. See United States v.

Stewart, 977 F.2d 81, 84 (3d Cir. 1992) (“A transcript showing full compliance with the

customary inquiries and admonitions furnishes strong, although not necessarily

conclusive, evidence that the accused entered his plea without coercion and with an

appreciation of its consequences.”).

       Next, we examine Westberry’s sentence. We have set forth a “three-step

framework” for district courts to follow when sentencing a defendant. See United States

                                             6
v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc). First, a district court must

calculate a Guidelines sentence as it would have been prior to United States v. Booker,

543 U.S. 220 (2005). Id. Second, the district court must formally rule on any motions

for departure and state what effect any departure would have on the Guidelines

calculation. Id. Third, the district court must exercise discretion by considering relevant

18 U.S.C. § 3553(a) factors regardless of whether it varies from the Guidelines sentence.

Id. Here, the District Court calculated a Guidelines sentence of 7 to 13 months of

imprisonment. There were no motions for departure. The District Court considered the

relevant § 3553(a) factors in determining its sentence, including Westberry’s prior

experience with the criminal justice system, the nature of the violation at issue, and

deterrence. Accordingly, this sentence was procedurally reasonable.

       Any challenge to the substantive reasonableness of the sentence would also be

meritless. Because the record reflects “rational and meaningful consideration of the

factors enumerated in § 3553(a),” United States v. Grier, 475 F.3d 556, 571 (3d Cir.

2007) (en banc), we only overturn a sentence as unreasonable when “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, 56 (3d

Cir. 2009) (en banc). Here, the decision of the District Court to impose a sentence of 12

months — which was within the Guidelines range and was the term of imprisonment

agreed upon by the defendant and the Government — and a two-year term of supervised

release was not unreasonable under the circumstances.



                                             7
                                          III.

      For the foregoing reasons, we will grant counsel’s request to withdraw and affirm

the District Court’s judgment.




                                           8
