                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 10-1959
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                            REYNALDO RIVERA-CRUZ,

                                                 Appellant


                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (Crim. No. 1-06-cr-00043-001)
                      District Judge: Hon. Christopher C. Conner

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   October 25, 2010

     Before: McKEE, Chief Judge, and SLOVITER and RENDELL, Circuit Judges,

                          (Opinion Filed: November 12, 2010)

                                       OPINION

McKEE, Chief Judge.

      Reynaldo Rivera-Cruz appeals from the district court’s judgment of conviction

and sentence that was imposed following his guilty plea. His appointed counsel has filed

a motion to withdraw as counsel and submitted a brief pursuant to Anders v. California,

386 U.S. 738 (1967). For the reasons that follow, we will affirm.
                                            1
                                                I.

       Because we write primarily for the parties, it is not necessary to recite at length the

facts of this case. It is sufficient to note that Rivera-Cruz entered a negotiated guilty plea

to possession of cocaine hydrochloride with the intent to distribute, in violation of 21

U.S.C. § 841(a)(1). In the plea agreement, the parties agreed that the quantity of cocaine

hydrochloride attributable to Rivera-Cruz was between five and fifteen kilograms.

Before his sentencing hearing, Rivera-Cruz objected to the presentence report on the

basis of the drug quantity amount and the two-level enhancement for possession of a

firearm at the time of the offense. After receiving testimony at the sentencing hearing,

the district court overruled both objections.

       The court found that under the Sentencing Guidelines, Rivera-Cruz’s offense level

was a 36, his criminal history category was VI, and his Guidelines range was 324-405

months. Because the statutory maximum penalty was twenty years, the court restricted

the Guidelines sentence to 240 months. The court granted the government’s motion for a

downward departure pursuant to U.S.S.G. § 5K1.1, thereby reducing Rivera-Cruz’s

offense level to 31, with a Guidelines range of 188-235 months. The court then

sentenced Rivera-Cruz to 188 months of imprisonment. This appeal followed. 1

       As noted above, Rivera-Cruz’s appointed counsel has filed a motion to withdraw

and an Anders brief stating that he is unable to identify any non-frivolous issues for




       1
           We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                                2
review. In accordance with LAR 109.2(a), the government and Rivera-Cruz were

provided with a copy of the Anders brief and both filed response briefs. 2

                                              II.

       When counsel submits an Anders brief, we must determine: “(1) whether counsel

adequately fulfilled the rule’s requirements [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). “[I]f counsel finds his

case to be wholly frivolous, after a conscientious examination of it, he should so advise

the court and request permission to withdraw. That request must, however, be

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

appeal.” Anders, 386 U.S. at 744. “Under Anders, appellant’s counsel must ‘satisfy the

court that he or she has thoroughly scoured the record in search of appealable issues’ and

then ‘explain why the issues are frivolous.’” United States v. Coleman, 575 F.3d 316, 319

(3d. Cir. 2009) (quoting United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000)).

       Counsel identifies five potential issues for appeal and concludes that they are all

frivolous. The issues he identifies are: (1) the court lacked jurisdiction to accept the plea;

(2) the plea is invalid as judged by applicable constitutional and statutory standards; (3)

the sentence is illegal; (4) the court erred in its drug quantity calculation; and (5) the court


       2
        Rivera-Cruz also filed a pro se motion asking the district court to remove counsel
and disregard the Anders brief filed by his counsel. We agree that there are no non-
frivolous issues in Rivera-Cruz’s appeal, and we will therefore deny the motion to
disregard appellate counsel’s brief.
                                               3
erred in applying the two-level enhancement for possession of a firearm at the time of the

offense.

       The first issue clearly would be frivolous because Rivera-Cruz was charged with a

federal crime; hence, the district court had jurisdiction pursuant to 18 U.S.C. § 3231.

       The second issue would be frivolous because Rivera-Cruz’s guilty plea was valid.

It met the standards set forth in Boykin v. Alabama, 395 U.S. 238 (1969), and Federal

Rule of Criminal Procedure 11. As the record demonstrates, the district court conducted

a thorough plea colloquy in compliance with Boykin and Rule 11.

       The third issue would be frivolous because Rivera-Cruz’s sentence clearly was not

illegal. The sentence did not exceed the statutory maximum, and it was procedurally and

substantively reasonable. A sentence is procedurally reasonable if a district court

engages in the following three-step process:

   A district court must begin the process by first calculating the applicable
   Guidelines range. After that initial calculation, the court must then rule on any
   motions for departure and, if a motion is granted, state how the departure affects
   the Guidelines calculation. Finally, after allowing the parties an opportunity for
   argument, the court must consider all of the § 3553(a) factors and determine the
   appropriate sentence to impose, which may vary from the sentencing range called
   for by the Guidelines.

United States v. Levinson, 543 F.3d 190, 194-95 (3d Cir. 2008). The district court

accurately determined the Guidelines range, granted the government’s motion for a

downward departure, recalculated the Guidelines range based on the departure, and

meaningfully considered the § 3553(a) factors. If a sentence is procedurally sound, it is

also considered substantively reasonable “unless no reasonable sentencing court would
                                               4
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). Here, the

district court reasonably sentenced Rivera-Cruz to a sentence of 188 months of

imprisonment.

       The fourth issue would be frivolous because the district court did not err in its

drug calculation. “Judicial factfinding in the course of selecting a sentence within the

permissible range does not offend the Fifth and Sixth Amendment rights to a jury trial

and proof beyond a reasonable doubt.” United States v. Grier, 475 F.3d 556, 562 (3d Cir.

2007) (en banc). In determining a sentence, “district courts . . . make factual findings by

a preponderance of the evidence and courts of appeals . . . review those findings for clear

error.” Id. at 561. The district court found that the quantity of drugs attributable to

Rivera-Cruz was between five and fifteen kilograms. Rivera-Cruz admitted to a law

enforcement official that his offense involved this drug quantity, and he stipulated to the

drug quantity in his plea agreement. There can be no doubt that the district court did not

commit clear error in its drug quantity calculation

       Lastly, the fifth issue would be frivolous because the district court did not err in

applying the two-level sentence enhancement for possession of a firearm at the time of

the offense, pursuant to U.S.S.G. § 2D1.1(b)(1). Although Rivera-Cruz, in his pro se

reply brief argues that this enhancement should have been proven beyond a reasonable

doubt, factual findings relevant to sentencing enhancements are only required to be

proven by a preponderance of the evidence. United States v. Fisher, 502 F.3d 293, 307
                                              5
(3d Cir. 2007). Note (3) of the Commentary to § 2D1.1(b)(1) explains that “[t]he

enhancement for weapon possession . . . reflects the increased danger of violence when

drug traffickers possess weapons. The enhancement should be applied if the weapon was

present, unless it is clearly improbable that the weapon was connected with the offense.”

“[D]efendants have rarely been able to overcome the ‘clearly improbable’ hurdle.”

United States v. Drozdowski, 313 F.3d 819, 822 (3d Cir. 2002). Here, the guns were

found in Rivera-Cruz’s bedroom, along with ammunition and drug proceeds, and drugs

were found in the house. The district court did not commit clear error in applying the

two-level enhancement to Rivera-Cruz’s sentence. 3

                                              III.

       Accordingly, we will affirm the judgment of conviction and sentence. Defense

counsel’s motion to withdraw will be granted.




       3
         Although two witnesses testified that the guns found in Rivera-Cruz’s bedroom
belonged to them, the court found that both witnesses lacked credibility. We cannot
overturn the district court’s credibility determination because “[c]redibility
determinations are the unique province of a fact finder . . . . Where the record supports a
credibility determination, it is not for an appellate court to set it aside.” United States v.
Kole, 164 F.3d 164, 177 (3d Cir. 1998).
                                               6
