                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                     No. 11-1325
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                                   JAMES PEYTON,
                                                Appellant
                                    ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF NEW JERSEY
                        (D.C. Crim. No. 10-cr-00039-001)
                    District Judge: Honorable Noel L. Hillman
                                  ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 9, 2011
                                   ____________

       Before: HARDIMAN, BARRY, Circuit Judges and RUFE, * District Judge

                            (Opinion Filed: January 5, 2012)
                                    ____________

                                       OPINION
                                     ____________

BARRY, Circuit Judge

      Appellant James Peyton appeals his judgment of sentence after pleading guilty to


*
  Honorable Cynthia M. Rufe, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
certain bribery and tax offenses. His counsel filed a motion to withdraw, as well as a

brief pursuant to Anders v. California, 386 U.S. 738 (1967) and Third Circuit L.A.R.

109.2(a), asserting that there are no non-frivolous issues on appeal. We will grant the

motion to withdraw and will affirm the judgment of sentence.

                                              I.

       Between 2006 and 2009, Peyton was employed as an investigator with the New

Jersey Department of Labor. His responsibilities included auditing employer books and

records, reviewing quarterly payroll tax filings, and taking other investigative steps to

ensure employer compliance with tax obligations. In his capacity as an investigator,

Peyton solicited corrupt cash payments from owners, operators, and representatives of

temporary labor firms. The parties stipulated to the value of the bribery payments as

$119,600. In exchange for the bribes, Peyton used his influence as a Department of

Labor employee and prepared forms that intentionally understated the tax amounts owed

by the firms. Peyton also filed an income tax return with his wife for 2007 that willfully

understated his own taxable income by omitting the income from the bribes.

       Peyton entered into a plea agreement and pleaded guilty to one count of bribery in

violation of 18 U.S.C. § 666(a)(1)(B), and one count of subscribing to a false tax return in

violation of 26 U.S.C. § 7206(1). In the plea agreement, the parties stipulated to much

that was relevant to the application of the Guidelines and agreed that the total offense

level applicable to Peyton would be 19, 20, or 21. The parties also agreed “not to seek or


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argue for any upward or downward departure, adjustment or variance not set forth” in the

plea agreement, with the exception that Peyton reserved his right “to seek a variance

under 18 U.S.C. § 3553 based on his health condition.”

       At sentencing, the District Court applied the Guidelines as contemplated in the

plea agreement and factored in the parties’ stipulation regarding the amount of the bribery

payments. The result was a total offense level of 21 and a criminal history category I,

which carried a guideline range of 37 to 46 months. Turning to the analysis of the

statutory factors of 18 U.S.C. § 3553(a), Peyton’s counsel argued in favor of a variance

below the guideline range on account of his client’s health problems. In particular,

Peyton’s counsel argued that Peyton was 72 years old, took numerous medications, and

suffered from hypertension, diabetes, coronary artery disease, thoracic and lumbar

degenerative disc disease, and prostate cancer. The District Court agreed that Peyton’s

various medical conditions were appropriate for consideration in fashioning its sentence

within the Guidelines, but found that they did not justify a variance from the Guidelines.

The District Court sentenced Peyton to 42 months imprisonment on the bribery count,

with a concurrent sentence of 36 months on the tax count. This appeal followed.

                                            II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       Under Anders v. California, if appellate counsel “finds his case to be wholly

frivolous, after a conscientious examination of it, he should so advise the court and


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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.” 386 U.S. 738,

744 (1967). “The Court’s inquiry when counsel submits an Anders brief is thus twofold:

(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). With respect to the first requirement:

       The duties of counsel when preparing an Anders brief are (1) to satisfy the
       court that counsel has thoroughly examined the record in search of
       appealable issues, and (2) to explain why the issues are frivolous. Counsel
       need not raise and reject every possible claim. However, at a minimum, he
       or she must meet the “conscientious examination” standard . . . .

Id (citation omitted). With respect to our independent review of the record for non-

frivolous issues, we generally confine our scrutiny to those portions of the record

identified by an adequate Anders brief, and the appellant’s pro se filings. See id. at 301.

       Reviewing counsel’s Anders brief together with the record, we conclude that

counsel has satisfied his obligation to conduct a “conscientious examination” of the case.

Likewise, our independent analysis of the record reveals no error in Peyton’s guilty plea

or sentence. With respect to the guilty plea, the District Court ensured that the plea was

voluntary, found that there was a factual basis for the plea, and otherwise satisfied the

procedural requirements of Federal Rule of Criminal Procedure 11. With respect to the

sentencing, the District Court accurately calculated the guideline range, clearly indicated

that the guideline range was advisory, analyzed the factors under 18 U.S.C. § 3553, and


                                              4
otherwise satisfied the procedural requirements of Federal Rule of Criminal Procedure

32. While the District Court did raise a question regarding the application of USSG §

2C1.1(b)(2) and whether the loss to the government was greater than the stipulated

amount of the bribes, it ultimately resolved that question in favor of Peyton.

       The one issue for appeal raised by the Anders brief, and echoed in Peyton’s pro se

filings, is that the District Court erred in refusing to grant a variance based on Peyton’s

health and medical conditions. Because the sentencing was procedurally sound, Peyton

is only entitled to relief if the sentence is substantively unreasonable. United States v.

Tomko, 562 F.3d 558, 567 (3d Cir. 2009). We review the substantive reasonableness of a

sentence for abuse of discretion, and will affirm “unless no reasonable sentencing court

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

district court provided.” Id. at 568. “Ultimately, the touchstone of ‘reasonableness’ is

whether the record as a whole reflects rational and meaningful consideration of the

factors enumerated in 18 U.S.C. § 3553(a).” Id. (internal quotation marks omitted).

       Applying this standard, we have no difficulty concluding that Peyton’s sentence is

reasonable. The District Court acknowledged that Peyton’s health and medical conditions

were proper issues for its consideration under 18 U.S.C. § 3553(a), and that it would

weigh them in fashioning an overall sentence. Nevertheless, the District Court

concluded that Peyton’s medical conditions were not so substantial or unusual as to

require a variance. The District Court found that the Bureau of Prisons was well-


                                              5
equipped to handle Peyton’s medical needs, including his medication-controlled diabetes.

It also noted that Peyton had been suffering from these medical conditions for a

substantial period of time and yet was nonetheless able to work, engage in the criminal

scheme, and frequent casinos away from his home.

       Finally, the District Court balanced Peyton’s health and other favorable factors

such as his military service, against negative factors such as his lack of candor to the

Court, his betrayal of the public trust, the substantial public and private harm that resulted

from Peyton’s criminal activity, and the need to send a very strong message that this kind

of scheme is a “serious crime worthy of serious punishment.” This record, taken as a

whole, demonstrates that the District Court more than met its obligation to conduct a

rational and meaningful consideration of the factors enumerated in § 3553(a), including

Peyton’s health. As a result, there is no non-frivolous argument that his sentence is

unreasonable.

                                             III.

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

judgment of sentence. We also find, pursuant to Third Circuit L.A.R. 109.2(b), that the

issues presented in this appeal lack legal merit for purposes of counsel filing a petition for

writ of certiorari in the United States Supreme Court.




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