                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 10-2700
                                     _____________

                           UNITED STATES OF AMERICA


                                             v.

                                    FARUK ONCEL,
                                             Appellant.

                                     _____________


                     On Appeal from the United States District Court
                                           for the
                                  District of New Jersey
                                 (D.C. Civ. No. 08-429)
                          District Judge: Katharine S. Hayden

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  on March 22, 2011

        Before: FUENTES, SMITH, AND VAN ANTWERPEN, Circuit Judges.

                            (Opinion Filed: March 31, 2011)
                           _____________________________

                              OPINION OF THE COURT
                           _____________________________


FUENTES, Circuit Judge:

       Faruk Oncel appeals the sentence resulting from his plea of guilty to a count of

theft of monies from a plan subject to Title I of ERISA, in violation of 18 U.S.C. § 664.

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Oncel was sentenced to 27 months’ imprisonment, three years of supervised release, and

restitution in the amount of $91,576.10. Counsel for Oncel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), and requested leave to withdraw. Since we

are satisfied that there are no non-frivolous issues concerning which Oncel may appeal,

we affirm the District Court’s sentence and grant Oncel’s counsel leave to withdraw.

                                             I.

       Because we write primarily for the parties, we set forth only the facts and history

that are relevant to our conclusion. Oncel pled guilty in July 2009 pursuant to a plea

agreement in which the parties stipulated that his offense level for Sentencing Guidelines

purposes was 13 and that neither party would seek a variance or departure, except that

Oncel reserved the right to argue for a variance on the grounds that his criminal history

category overstated the seriousness of his criminal history. The agreement also included

an appellate waiver waiving both parties’ rights to appeal a determination that Oncel’s

offense level was 13, but reserving both parties’ rights to appeal the District Court’s

determination of his criminal history category.

       In March 2010, the District Court held a sentencing hearing at which it adopted

the proposed offense level of 13. The court then heard argument concerning the

appropriate criminal history category to assign Oncel. The government advocated for a

criminal history category of V, which would result in a sentence of at least 30 months.

The defense argued that mechanical application of the Guidelines in Oncel’s case would

overstate the seriousness of his criminal history and argued that the court should vary

downwards to sentence him as if he were in the criminal history category of IV, which

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would result in a sentence of 24 to 30 months. After argument, the court sentenced Oncel

to 27 months (that is, in the middle of the range Oncel had requested).

       Upon appeal, counsel filed an Anders brief and requested leave to withdraw.

Oncel himself was given the opportunity to file a brief pro se, but has not done so.



                                             II.

       When a court-appointed appellate counsel can identify no non-frivolous issues for

appeal, she must “so advise the Court and request permission to withdraw,”

accompanying her request with a brief “referring to anything in the record that might

arguably support the appeal.” Anders v. California, 386 U.S. 738, 744 (1967). This brief

must show that counsel “scoured the record in search of appealable issues” and explain

why any issues identified are “frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d

Cir. 2000). We must then determine whether counsel “adequately fulfilled the rule’s

requirements” and whether “an independent review of the record presents any

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

However, when the Anders brief appears adequate, we limit our scrutiny to those issues

and portions of the record identified by the brief. Id. at 301.

       In this case, counsel’s Anders brief appears adequate. Counsel has identified three

possible issues: the knowingness and voluntariness of Oncel’s guilty plea; the

enforceability of Oncel’s appellate waiver; and the reasonableness of Oncel’s sentence.

In each instance, we agree with counsel that the issue is frivolous. The District Court

conducted an adequate colloquy (with a translator present) to assure that Oncel

                                              3
understood the nature and consequences of his plea. See, e.g., Iowa v. Tovar, 541 U.S.

77, 92 (2004). Oncel also freely entered into his waiver of his right to appeal the

determination of his offense level, and there would be no miscarriage of justice in

enforcing it. See, e.g., United States v. Goodson, 544 F.3d 529, 536 (3d Cir. 2008).

Finally, the District Court properly considered the factors specified in 18 U.S.C. §

3553(a) before sentencing Oncel to a term of imprisonment within the range which he

himself had indicated would be appropriate.


                                            III.

       For the foregoing reasons, we affirm the sentence of the District Court and grant

defense counsel permission to withdraw from the case.




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