                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                      No. 11-3291
                                    _______________

                            UNITED STATES OF AMERICA

                                             v.

                                  NELSON LUIS DIAZ,

                                              Appellant
                                    _______________

                     On Appeal from the United States District Court
                        For the Middle District of Pennsylvania
                     (D.C. Criminal Action No. 1-07-cr-00147-001)
                      District Judge: Honorable John E. Jones, III
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 18, 2012
                                  _______________

        Before: AMBRO, VANASKIE and VAN ANTWERPEN, Circuit Judges

                               (Opinion filed: July 6, 2012 )
                                    _______________

                                       OPINION
                                    _______________

AMBRO, Circuit Judge

       Nelson Luis Diaz was convicted of one count of possession of heroin with intent

to distribute, in violation of 21 U.S.C. § 841(a)(1), and two counts of possession of a

firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c). The District
Court sentenced him to 480 months’ imprisonment, but Diaz twice appealed his sentence,

successfully reducing it to 397 months. He nonetheless appeals. His attorney, however,

moves to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967),

asserting that all potential grounds for appeal are frivolous. Diaz has not filed a pro se

brief in response. We grant the motion and affirm Diaz’s sentence.

                                      I. Background

       Because we write solely for the parties, we recite only those facts necessary to our

decision. In March 2006, Diaz was physically assaulted by Albert Pierce, a rival drug

dealer. Soon thereafter, Diaz and several individuals confronted Pierce. During the

ensuing altercation, several gunshots were fired, including by Diaz, and Pierce was

fatally wounded. Who fired the fatal shot is unknown. In connection with that incident,

Diaz was arrested and charged with one count of possession of heroin with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1), and two counts of possession of a

firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c). PSR at 1–2.

In January 2008, he was convicted on all counts. The District Court, as noted, sentenced

Diaz to 480 months’ imprisonment, allotting 240 months for the drug count and 240

months for the two firearm counts (120 months each, to be served consecutively). Diaz

appealed his convictions and sentence to this Court. We affirmed the convictions for the

drug offense and one firearm offense, vacated the second firearm count pursuant to the

Fifth Amendment’s Double Jeopardy Clause, and remanded for resentencing. United

States v. Diaz, 592 F.3d 467, 474–75 (3d Cir. 2010).



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       On remand, the District Court held a de novo sentencing proceeding and

resentenced Diaz to 400 months’ imprisonment, maintaining the 240-month sentence for

the drug count and increasing the sentence for the remaining firearm count to 160

months. Diaz again appealed, arguing that our Court had directed the District Court

simply to subtract the 120-month sentence for the vacated firearm count, which would

result in a total sentence of 360 months. Diaz also urged us to remand for resentencing

under Pepper v. United States, 131 S. Ct. 1229, 1241–43 (2011) (holding that at

resentencing a district court can consider postsentencing rehabilitation relevant to the

factors in 18 U.S.C. § 3553(a)). We upheld the District Court’s exercise of de novo

resentencing, but nonetheless remanded for resentencing pursuant to Pepper. United

States v. Diaz, 639 F.3d 616, 619, 622–623 (3d Cir. 2011).

       On remand after his second appeal, the District Court resentenced Diaz to 397

months’ imprisonment. It took into account Diaz’s postsentencing behavior, noting both

his positive behavior (i.e., his documented enrollment in a GED program, his lack of

violence and drug use, and the harsh conditions of the prison in Dauphin County,

Pennsylvania), and his bad behavior (including his infractions while in prison, e.g.,

possession of marijuana). The Court reasoned that, notwithstanding Diaz’s success in

vacating one firearm count and his positive postsentence behavior, a sentence any lower

than 397 months would not properly account for the seriousness of the underlying crime.

Indeed, this sentence was at the lower end of the Sentencing Guidelines range of 360

months to life imprisonment (which was the same range applicable at his first

sentencing).

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                                      II. Discussion

       Our rules provide that “[w]here, 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 . . . .” 3d Cir.

L.A.R. 109.2(a). If we concur with trial counsel’s assessment, we “will grant [the]

Anders motion, and dispose of the appeal without appointing new counsel.” Id.

Accordingly, our inquiry “is . . . 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).

       In his Anders brief, Diaz’s attorney noted that the only ground for appeal is the

reasonableness of Diaz’s sentence. Our review of the record confirms counsel’s

assessment that there are no nonfrivolous issues for appeal.

       District courts must follow a three-step process in imposing a sentence: (1)

calculate the applicable Guidelines range; (2) formally rule on any departure motions and

explain their rulings on such motions; and (3) exercise discretion in applying at

sentencing any relevant factors set forth in § 3553(a). United States v. Gunter, 462 F.3d

237, 247 (3d Cir. 2006). As Diaz’s attorney explains in his Anders brief, the District

Court precisely followed this process. It correctly calculated the applicable Guidelines

range, to which Diaz did not object. Neither party filed a departure motion. Moreover,

the Court properly applied the § 3553(a) factors at sentencing. Among other things, it

considered: (1) the facts of Diaz’s criminal conviction; (2) his postsentencing behavior


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and the prison conditions; (3) his criminal history and upbringing; and (4) both parties’

detailed sentencing memoranda. The Court disagreed that a sentence of 360 months (the

minimum length of the Guidelines range) would adequately deter Diaz given the

seriousness of his offenses. Because the Court followed proper sentencing procedures

and sentenced Diaz to a term of imprisonment on the lower end of the Guidelines range,

we cannot say that Diaz’s sentence is either procedurally or substantively unreasonable.

                               *      *      *      *      *

       Diaz’s counsel adequately fulfilled the requirements of Anders. Because our

independent review of the record fails to reveal any nonfrivolous grounds for direct

appeal, we grant counsel’s motion to withdraw and affirm Diaz’s sentence.




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