                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 12-2717
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                             ROBERT DEJAUN GAINES,
                                                 Appellant
                                 _______________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                  (D.C. No. 11-cr-088)
                        District Judge: Hon. John E. Jones, III
                                   _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 5, 2013

               Before: SCIRICA, JORDAN, and ROTH, Circuit Judges.

                                (Filed: March 13, 2013)
                                   _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      Robert Gaines appeals the sentence imposed by the United States District Court

for the Middle District of Pennsylvania, and his attorney moves to withdraw as counsel

pursuant to Anders v. California, 386 U.S. 738 (1967). We will grant the motion to

withdraw and will affirm Gaines’s sentence.
I.       Background

         On November 28, 2010, the Pennsylvania State Police attempted to conduct a

traffic stop of a car that they observed operating without rear registration lights. The

driver of the car attempted to flee, and a high-speed chase ensued. During the chase, the

police drove over a silver object in the roadway. They lost sight of the fleeing vehicle but

later discovered it in a nearby parking lot without its driver. The police returned to the

area in which they had seen the silver object and recovered a loaded, nickel-plated Ruger

.22 magnum handgun. The police ultimately apprehended Gaines in connection with the

chase.

         An officer read Gaines his Miranda rights, and, afterward, on the way to the police

station, Gaines admitted that he had thrown a nickel-plated handgun out of the car

window. At the police station, Gaines was re-read his Miranda rights. He then told

police that he was carrying the gun for protection.

         A grand jury indicted Gaines on one count of possession of a firearm by a

convicted felon in violation of 18 U.S.C. § 922(g). He initially pled not guilty but

changed his plea to guilty on October 31, 2011, pursuant to a written plea agreement with

the government.1


         1
         At the change of plea hearing, Gaines said he understood that by entering a guilty
plea he was giving up, inter alia, the right to have the court decide any pretrial motions.
He verified his signature on the plea agreement and told the District Court that he had
read and understood the agreement. The terms of the agreement were also summarized
for Gaines, who agreed that the summary was accurate. He then stated that no threats had
been made against him or his family to induce him to sign the plea agreement, and that he
had signed it of his own free will. The Court also discussed Gaines’s concerns over some
of the facts presented by the government and aspects of his criminal history. In the
                                              2
       The District Court held a sentencing hearing on May 31, 2012, and calculated the

sentencing guidelines range as 92 to 115 months’ imprisonment. Citing § 4A1.3 of the

United States Sentencing Guidelines,2 Gaines moved for a downward departure from the

guidelines range, on the grounds that his criminal history category of VI overrepresented

the seriousness of his past crimes. Gaines also requested a downward variance in

consideration of the 18 U.S.C. § 3553(a) sentencing factors and requested that any

sentence imposed by the Court run concurrently with his state prison sentence. The

Court denied the motion for departure, noting that there had been an escalation in the

seriousness of the crimes committed by Gaines and that he had recently been convicted in

state court on five counts of drug trafficking. The Court also noted that Gaines had been

sentenced in absentia in state court one week before the current offense. After

considering the § 3553(a) factors at length, including the fact that Gaines’s employment

history was sporadic, that a substantial amount of his income was derived from drug

trafficking, and that Gaines had been sentenced in state court on drug charges just before

he was arrested on the present offense, the Court went on to consider that Gaines had a



agreement, Gaines agreed that his offense met all of the elements of a violation of 18
U.S.C. § 922(g), as they were explained to him by the Court. Gaines reserved the right to
direct and collateral appeal by having the waiver of appeal section stricken from the plea
agreement. The government agreed not to pursue any further prosecution directly arising
out of the charged offense and moved for a three-level reduction in Gaines’s calculated
offense level for acceptance of responsibility.
       2
        That guideline provides, “If reliable information indicates that the defendant’s
criminal history category substantially over-represents the seriousness of the defendant’s
criminal history or the likelihood that the defendant will commit other crimes, a
downward departure may be warranted.” U.S. Sentencing Guidelines Manual
(“U.S.S.G.”) § 4A1.3(b)(1).

                                            3
serious drug abuse problem, which he admitted, and that he had a supportive family. The

Court declined to have Gaines’s sentence run concurrently with his state sentence,3 but it

imposed a below-guidelines sentence of 84 months’ imprisonment to run consecutively

with Gaines’s state sentence.

II.    Discussion4

       Gaines filed this timely appeal of his sentence on June 14, 2012. Submitting that

all potential issues for appeal are frivolous, Gaines’s counsel asks permission to

withdraw. Under Anders, appellate counsel may seek withdrawal after conducting a full

and conscientious examination of all the proceedings and determining that there is no

non-frivolous basis for appeal. Anders, 386 U.S at 744. Counsel must accompany such a

request with a brief identifying any issues that might support an appeal. Id.

       We apply a two-step review when Anders is invoked: first, we determine whether

counsel has “adequately fulfilled” the requirements of Local Appellate Rule 109.2(a),5



       3
         The District Court concluded that to run the sentence concurrently with the state
sentence would almost eclipse the sentence that it imposed and that Gaines would
effectively avoid punishment for the violation of 18 U.S.C. § 922(g).
       4
         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).
       5
           We implement Anders through our Local Appellate Rule 109.2(a):
                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. … If the
                panel agrees that the appeal is without merit, it will grant
                                             4
and, second, we examine “whether an independent review of the record presents any

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

       When deciding whether counsel has “adequately fulfilled” the requirements of

Rule 109.2(a), we turn to the adequacy of counsel’s supporting brief. To be adequate, the

brief must satisfy us that counsel has thoroughly examined the record in search of

appealable issues and has explained why those issues are frivolous. Youla, 241 F.3d at

300. “Counsel need not raise and reject every possible claim,” but must still carefully

examine the record. Id. If the Anders brief is adequate, our review is limited to those

issues implicated by the brief. Id. at 301. When the Anders brief is inadequate, we may

expand our review to portions of the record implicated in the defendant’s pro se brief or

other filings that provide “guidance concerning the issues [the defendant] wishes to raise

on appeal.” Id. Regardless of the adequacy of the brief, we may affirm the conviction

and sentence without appointing new counsel if we find, after reviewing the record, that

the “frivolousness [of the appeal] is patent.” United States v. Coleman, 575 F.3d 316,

321 (3d Cir. 2009) (internal quotation marks omitted).

       The Anders brief here identifies three potentially appealable issues:6 (1) whether

Gaines’s statements to police should have been suppressed, (2) whether Gaines


              counsel’s Anders motion, and dispose of the appeal without
              appointing new counsel.
3d Cir. L.A.R. 109.2(a).

       6
         Gaines was informed by this Court of his right to submit a pro se brief in support
of his appeal but has failed to do so. Gaines’s counsel, however, has included in the
Anders brief issues proposed by Gaines.

                                             5
voluntarily entered into the plea agreement with the government, and (3) whether the

District Court imposed an unreasonable sentence and abused its sentencing discretion.

Gaines’s counsel examined the record and contends there is no merit to this appeal. We

are satisfied that the Anders brief is adequate and will confine our review to the issues it

contains.7

       The argument that Gaines’s statements to police should have been suppressed is

meritless. After entering an unconditional guilty plea, as Gaines did here, an appellee

may not raise on appeal any issues concerning pretrial rulings. See Tollett v. Henderson,

411 U.S. 258, 267 (1973) (“When a criminal defendant has solemnly admitted in open

court that he is in fact guilty of the offense with which he is charged, he may not

thereafter raise independent claims relating to the deprivation of constitutional rights that

occurred prior to the entry of the guilty plea.”). The District Court here informed Gaines

at the change of plea hearing that he would be waiving the right to bring any pretrial

motions by pleading guilty, which Gaines acknowledged. Gaines made no pretrial

motions for suppression, nor did he make his guilty plea conditional. Thus, he is

precluded from arguing the suppression issue, and it represents no basis for appeal.

       Gaines’s contention that he did not voluntarily enter into the plea agreement with

the government is likewise unfounded, as it contradicts his testimony to the District Court



       7
         Counsel’s Anders brief also discusses a possible jurisdictional objection, but that
issue is patently frivolous because district courts have original jurisdiction over “all
offenses against the laws of the United States” under 18 U.S.C. § 3231. Gaines was
indicted for and pled guilty to a violation of 18 U.S.C. § 922(g), a law of the United
States.

                                              6
at the change of plea hearing and is without support in the record. A guilty plea is not

constitutionally involuntary merely because the government threatens to pursue more

serious charges, as this is part of the “give-and-take” of the plea bargaining process.

Bordenkircher v. Hayes, 434 U.S. 357, 363-64 (1978). Gaines testified at the change of

plea hearing that he had not been threatened and had entered into the plea agreement of

his own free will. Therefore, Gaines’s argument that his guilty plea was not voluntary is

frivolous.

       Finally, Gaines’s challenge to the reasonableness of his sentence is, like his other

arguments, frivolous. We review the sentencing decision of a district court for abuse of

discretion, looking for procedural error and then examining the sentence for substantive

reasonableness. United States v. Negroni, 638 F.3d 434, 443 (3d Cir. 2011). The District

Court recognized the guidelines as advisory and imposed a sentence below the guidelines

range. It considered and dismissed Gaines’s motion for a departure from the guidelines

because it did not find that his criminal history was overstated. The Court thoroughly

considered the § 3553(a) factors, and explained its analysis, considering the nature of the

crime, the escalation of offenses committed by Gaines, his committing the present

offense promptly after an in absentia sentence for drug offenses in state court, his

personal history and circumstances, the sufficiency of the sentence, the need for

deterrence, and the need to avoid sentencing disparities. Thus, his sentence was

procedurally reasonable. A sentence eight months below the minimum guidelines

sentence is certainly not outside the broad range of possible sentences, and it is therefore



                                              7
substantively reasonable as well. Gaines’s sentencing argument is therefore patently

meritless.

III.   Conclusion

       For the foregoing reasons, we will grant the motion to withdraw and affirm the

sentence imposed by the District Court.




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