                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 16-1666
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                     DAVID STEELE,

                                              Appellant
                                     ______________

            ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                            (D.C. No. 3-15-cr-00196-001)
                   District Judge: Honorable Richard P. Conaboy
                                  ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 8, 2016
                                   ______________

   Before: McKEE and RESTREPO, Circuit Judges, and HORNAK,* District Judge.

                                  (Filed: March 16, 2017)
                                      ______________

                                       OPINION**
                                     ______________


       *
         Honorable Mark R. Hornak, District Judge for the United States District Court
for the Western District of Pennsylvania, sitting by designation.
       **
          This disposition is not an Opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
HORNAK, District Judge.

       Defendant David Steele pleaded guilty to theft of government property and was

sentenced to a term of imprisonment of twelve months and one day. Steele appealed, and

defense counsel moved to withdraw from the case pursuant to Anders v. California, 386

U.S. 738 (1967). For the reasons that follow, we will affirm the District Court’s judgment

and grant defense counsel’s motion to withdraw.

                                             I

       On September 11, 2015, after discovering evidence of theft from the postal service

in Steele’s home, the United States filed a one-count criminal information charging

Steele with theft of government property. With the assistance of defense counsel, Steele

negotiated a plea agreement with the United States and pled guilty to the information.

Steele’s Presentence Investigation Report (“PSR”) included a calculated Sentencing

Guidelines range of six to twelve months, which was based on a Total Offense Level of 8

and a Criminal History Category of III. Steele did not object to the PSR’s Guidelines

calculation, but defense counsel did argue at the sentencing hearing that in lieu of

imprisonment, the District Court should impose a sentence that consisted of probation

with conditions such as home detention. The District Court initially sentenced Steele to

twelve months imprisonment but, at the request of defense counsel, changed the sentence

to a term of imprisonment for twelve months and one day so that Steele could earn good

time credits while in prison. Steele filed a timely appeal, and defense counsel thereafter

filed a motion to withdraw as counsel under Anders. Steele did not file a pro se brief on

the merits of his appeal by July 31, 2016, as we had authorized him to do.

                                             2
                                                II

         In Anders, the Supreme Court explained that “if counsel finds his [client’s appeal]

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

court and request permission to withdraw.” Anders, 386 U.S. at 744. Defense counsel

must file a brief along with his motion to withdraw that discusses “anything in the record

that might arguably support the appeal.” Id. We must then decide “1) whether counsel

adequately fulfilled the requirements of Third Circuit Local Appellate Rule 109.2(a), and

2) whether an independent review of the record presents any nonfrivolous issues.” Simon

v. Gov't of the Virgin Islands, 679 F.3d 109, 114 (3d Cir. 2012), as amended (May 16,

2012). Issues are frivolous when they are not arguable on their merits. Id. We exercise

plenary review to make the necessary determinations.1 Id.

                                                A.

         An Anders brief is adequate under L.A.R. 109.2(a)2 when defense counsel (1)

demonstrates that he “thoroughly examined the record in search of appealable issues, and


1
 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
    L.A.R. 109.2(a) states:
         Where, upon review of the district court record, counsel is persuaded that
         the appeal presents no issue of even arguable merit, counsel may file a
         motion to withdraw and supporting brief pursuant to Anders v. California,
         386 U.S. 738 (1967), which must be served upon the appellant and the
         United States. The United States must file a brief in response. Appellant
         may also file a brief in response pro se. After all briefs have been filed, the
         clerk will refer the case to a merits panel. If the panel agrees that the appeal
         is without merit, it will grant counsel's Anders motion, and dispose of the
         appeal without appointing new counsel. If the panel finds arguable merit to
         the appeal, or that the Anders brief is inadequate to assist the court in its
                                                3
(2) [] explain[s] why the issues are frivolous.” United States v. Youla, 241 F.3d 296, 300

(3d Cir. 2001). In this case, we conclude that defense counsel’s Anders brief is adequate.

After thoroughly examining the record, defense counsel noted three issues that Steele

could potentially raise on appeal following his guilty plea: (1) whether the District Court

had jurisdiction; (2) whether his guilty plea was valid; and (3) whether the sentence

imposed was legal and reasonable. See United States v. Broce, 488 U.S. 563, 569 (1989).

Citing to the record and applicable legal authority, defense counsel then delineated why

such issues are not arguable on their merits. He explained that (1) there is no argument

that the District Court did not have jurisdiction, (2) the plea colloquy fully complied with

Federal Rule of Criminal Procedure 11, and (3) the sentence imposed was legal and

reasonable based on current law and the sentencing factors set forth in 18 U.S.C. §

3553(a). Accordingly, we are satisfied that defense counsel’s Anders brief adequately

fulfilled the requirements of L.A.R. 109.2(a).

                                             B.

       The second step of our analysis requires us to independently review the record for

non-frivolous, appealable issues. However, in doing so, we need not completely reinvent

the wheel. Youla, 241 F.3d at 301. Rather, “[w]here the Anders brief initially appears

adequate on its face, the proper course is for the appellate court to be guided in reviewing

the record by the Anders brief itself.” Id. (internal quotation marks omitted).

       review, it will appoint substitute counsel, order supplemental briefing and
       restore the case to the calendar. The panel will also determine whether to
       continue the appointment of current counsel or to direct the clerk to
       discharge current counsel and appoint new counsel.

                                              4
       Examining the three issues that defense counsel identified, we hold that there are

no non-frivolous issues for appeal in this case. First, we conclude that the District Court

incontestably had jurisdiction under 18 U.S.C. § 3231 because Steele was charged with

violating 18 U.S.C. § 641. Second, the record indicates that the District Court’s plea

colloquy fully complied with the requirements of Rule 11. Specifically, during the Plea

Hearing, the Magistrate Judge ensured that Steele understood the nature of the charge

against him and the rights that he would be foregoing by pleading guilty. 3 Accordingly,

we conclude that Steele’s guilty plea was knowing and voluntary and that there is no non-

frivolous argument to the contrary.

       Third, we conclude that the sentence imposed by the District Court was both

lawful and reasonable. We evaluate both the procedural and substantive reasonableness

of a sentence using an abuse of discretion standard. United States v. Grober, 624 F.3d

592, 599 (3d Cir. 2010). Under our holding in United States v. Gunter, 462 F.3d 237 (3d

Cir. 2006), the District Court must take three procedural steps when determining a

sentence: (1) correctly calculate the Guidelines sentencing range; (2) formally rule on any

departure motions by either party; and (3) consider the relevant sentencing factors set

forth in 18 U.S.C. § 3553(a) and explain the prescribed sentence. Id. at 247; see United

States v. Charles, 467 F.3d 828, 832 (3d Cir. 2006). “We will affirm a procedurally

sound sentence as substantively reasonable unless no reasonable sentencing court would

have imposed the same sentence on that particular defendant for the reasons the district


3
 The Magistrate Judge also concluded in his Report and Recommendation that Steele
was competent to plead guilty.
                                             5
court provided.” Grober, 624 F.3d at 599 (internal quotation marks and citations

omitted). In general, we also apply a presumption of reasonableness to sentences within

an appropriately-calculated Guidelines range. Rita v. United States, 551 U.S. 338, 346

(2007).

       In this case, where neither party moved for a formal departure, the District Court

fully satisfied the Gunter steps by correctly calculating a Guidelines sentencing range of

six to twelve months imprisonment, thoroughly considering the § 3553(a) factors, and

explaining that a sentence of twelve months imprisonment was proper given Steele’s long

history of criminal conduct and the harm it caused. Although the sentence the District

Court ultimately imposed was one day outside of and above the Guidelines sentencing

range, the District Court only amended its original sentence to add the extra day at

Steele’s request. Thus, accounting for the fact that the District Court carefully applied the

§ 3553(a) factors to the facts at issue, we are satisfied that the sentence the District Court

imposed was reasonable. An appeal based on the sentence would be frivolous.

                                              III

       For the foregoing reasons, we agree with defense counsel that there are no non-

frivolous issues for appeal in this case. We will grant defense counsel’s motion to

withdraw under Anders and affirm the District Court’s judgment and commitment Order.4




4
 Because we conclude that Steele’s appeal “lacks arguable merit,” L.A.R. 109.2(a) does
not require that we appoint Steele new counsel. United States v. Coleman, 575 F.3d 316,
321 (3d Cir. 2009).
                                              6
