                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 15-2383
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                                   CALEB PARSONS,
                                               Appellant
                                    _____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                       (D.C. Crim. No. 2-12-cr-00399-005)
                    District Judge: Honorable J. Curtis Joyner
                                  ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                     July 15, 2016
                                    ____________

              Before: FUENTES, SHWARTZ and BARRY, Circuit Judges

                           (Opinion Filed: September 8, 2016)
                                     ____________

                                       OPINION*
                                     ____________




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

       Caleb Parsons appeals his sentence of 160 months’ imprisonment for conspiracy,

dealing in firearms without a license, and possession of a firearm by a convicted felon.

His court-appointed attorney has moved to withdraw under Anders v. California, 386

U.S. 738 (1967), and Parsons has filed a brief in which he asks us to “[a]ffirm the

conviction and REMAND for resentencing with instructions to apply § 3E1.1 [acceptance

of responsibility] and remove the point used to enhance the offense category pursuant to

U.S.S.G. § 4A1.2(c)(1) and (2).” (Informal Brief (“pro se brief”) at 5.) In an unusual

twist, the Government has conceded that, as Parsons argues in his pro se brief, remand for

resentencing is appropriate due to plain error in the calculation of his Guidelines range.

For the reasons that follow, we will grant Parsons the relief he seeks as to § 4A1.2, relief

that the Government agrees is appropriate: we will affirm the conviction, vacate Parsons’

sentence, and remand for resentencing.

                                             I.

       In 2014, Parsons pleaded guilty to charges related to the illegal sale and possession

of firearms, pursuant to a plea agreement. At sentencing, he argued that a 2006

disorderly conduct offense, included in the summary of his criminal history in the

Presentence Investigation Report, should not be counted for purposes of computing his

criminal history category, because—and only because—he did not commit the offense.

The District Court determined that the claimed conviction was supported by

documentation, however, and one criminal history point associated with this conviction
                                              2
was included in the Guidelines calculation. The Court calculated Parsons’ Guidelines

range to be 140 to 175 months, which reflected a total offense level of 29 (including no

reduction for acceptance of responsibility), and Criminal History Category V. The Court

sentenced Parsons to a total term of incarceration of 160 months.

       On appeal, Parsons’ counsel filed a brief pursuant to Anders. Although counsel

made note of the disputed disorderly conduct offense in two footnotes (see Anders Br. at

9-10 n.2, n.3), the brief indicated that there were no non-frivolous issues for appeal

because the sentence was procedurally and substantively reasonable and there were no

valid grounds to challenge the Government’s refusal to file a motion pursuant to § 5K1.1,

a downward departure based on cooperation. Parsons, as noted, filed a pro se brief,

arguing that he should have received a reduction in offense level for acceptance of

responsibility, and that, under § 4A1.2(c) of the Guidelines, the disorderly conduct

offense should not have been used in the calculation of his criminal history category

because he did not receive a sentence of 30 or more days of imprisonment or one year of

probation.

       In its brief in response, the Government argued that counsel’s argument regarding

its failure to file a § 5K1.1 motion, and Parsons’ argument with respect to acceptance of

responsibility, were frivolous, and that, in any event, the § 3E1.1 argument was barred by

the appellate waiver in Parsons’ plea agreement. The Government acknowledged,

however, that, as Parsons argued, the District Court committed procedural error when it

assigned one criminal history point to the 2006 disorderly conduct conviction. Although
                                             3
Parsons’ appellate waiver would ordinarily preclude our review of that issue, and

although he had not raised this specific objection at sentencing, the Government

conceded that the Court’s error was plain, and indicated that it “does not seek to enforce

the waiver with respect to this issue, as the error affected Parsons’ substantial rights.”

(Gov’t Br. at 25.) The Government asked that we affirm Parsons’ conviction, enforce the

appellate waiver with respect to Parsons’ acceptance of responsibility argument, and

remand for resentencing without application of the criminal history point for the

disorderly conduct conviction.

                                             II.1

       In Anders, the Supreme Court emphasized that “[Counsel’s] role as advocate

requires that he support his client’s appeal to the best of his ability.” 386 U.S. at 744. An

attorney may seek permission to withdraw if he finds a case to be “wholly frivolous”

after a “conscientious examination” of the record; such request must, however, “be

accompanied by a brief referring to anything in the record that might arguably support the

appeal.” Id. If the court agrees that the case is wholly frivolous, “it may grant counsel’s

request to withdraw and dismiss the appeal,” but, “[o]n the other hand, if it finds any of

the legal points arguable on their merits (and therefore not frivolous) it must, prior to

decision, afford the indigent the assistance of counsel to argue the appeal.” Id.


1
 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary review to
determine whether there are any non-frivolous issues for appeal. Penson v. Ohio, 488
U.S. 75, 80 (1988).
                                              4
          In reviewing an Anders brief, we inquire as to “(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). “[W]e will reject briefs . . . in which counsel argue the purportedly frivolous

issues aggressively without explaining the faults in the arguments, as well as those where

we are not satisfied that counsel adequately attempted to uncover the best arguments for

his or her client.” United States v. Marvin, 211 F.3d 778, 781 (3d Cir. 2000).

          In this case, counsel’s brief was, at least technically, inadequate under Anders.

Although counsel listed the issue of “[i]nterpretation and application” of § 4A1.2(c)(1) in

his statement of issues, he addressed the issue only in two footnotes that fail to explain

why it was frivolous. (See Anders Br. at 9-10 n.2, n.3.) He likewise devoted only one

sentence to the denial of a reduction for acceptance of responsibility, the second issue

raised by Parsons in his pro se brief. (See id. at 19.) Simply stated, counsel failed to

meaningfully deal with the two issues later raised by Parsons, such that we can be assured

that he has considered them and found them “patently without merit,” see Marvin, 211

F.3d at 781; indeed, the Government itself acknowledges that a non-frivolous issue

exists.

          Parsons’ argument with respect to § 4A1.2(c) is, as the Government recognizes,

non-frivolous. Section 4A1.2(c) provides that certain sentences, including sentences for a

disorderly conduct offense, are included in the criminal history calculation only if “the

sentence was a term of probation of more than one year or a term of imprisonment of at
                                                5
least thirty days” or if the prior offense was “similar to an instant offense.” Here,

according to the PSR, Parsons’ 2006 disorderly conduct offense resulted in no

punishment beyond the payment of fines and costs, and it is not similar to the instant

firearms offenses. See U.S.S.G. § 4A1.2 cmt. n. 12(A). As the Government, to its credit,

recognizes, this offense was erroneously counted, and the additional criminal history

point bumped Parsons up into Criminal History Category V, resulting in a Guidelines

range of 140 to 175 months. Had Parsons correctly been placed in Category IV, his

Guidelines range would have been 121 to 151 months. His sentence, a total of 160

months’ imprisonment, could well have been lower had the Court calculated the correct

Guidelines range.

       Ordinarily, when a panel of our Court finds arguable merit to an appeal or that an

Anders brief is inadequate, we will appoint substitute counsel and order supplemental

briefing. See Local Appellate Rule 109.2(a). This is not an ordinary case. Here, no one,

including defense counsel in his effort to comply with the strictures of Anders, even

obliquely refers to any potential issue as to the conviction itself. No one raises any issue

other than to the sentence that was imposed, and no one seeks other than a resentencing,

much less a new direct appeal. (See Pro Se Br. at 5 (requesting that we “Affirm the

conviction and REMAND for resentencing . . . .”); Gov’t Br. at 17 (“The government . . .

agrees with the appellant that the district court committed an error in the sentencing

calculation that should be corrected on remand.”).)


                                              6
                                            III.

       We will affirm the conviction, vacate Parsons’ sentence, and remand for

resentencing without the criminal history point incorrectly applied and for the District

Court to consider, if proffered, other reasons as to why a particular sentence should be

imposed. We will deny counsel’s motion to withdraw without prejudice to any

application being made to the District Court for new counsel (or to withdraw) for

purposes of the resentencing proceeding.




                                             7
