                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 11-1699
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                                   TARIK McNISH,
                                            Appellant
                                   ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                          (D.C. Crim. Action No. 05-10)
                  District Judge: Honorable Thomas I. Vanaskie
                                 ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 28, 2011
                                  ______________

      Before: SLOVITER, GREENAWAY, JR., and ALDISERT, Circuit Judges.

                           (Opinion Filed: October 31, 2011)

                                    ______________

                                       OPINION
                                    ______________


GREENAWAY, JR., Circuit Judge.

      Appellant, Tarik McNish (“McNish”), violated the conditions of his supervised

release. The District Court for the Middle District of Pennsylvania sentenced him to
twelve months of incarceration, followed by two years of supervised release. McNish’s

counsel (“Counsel”) petitions this Court for permission to withdraw from representing

McNish on appeal, pursuant to Anders v. California, 386 U.S. 738 (1967). For the

reasons set forth below, we will grant Counsel’s petition and affirm the conviction and

sentence imposed by the District Court.

                                       I. Background

         We write primarily for the benefit of the parties and recount only the essential

facts.

         On December 22, 2010, two months into his four-year term of supervised release,

McNish was arrested and charged in state court with escape, criminal conspiracy,

disorderly conduct, and possession of drug paraphernalia. McNish pled guilty to

possession of drug paraphernalia. The other charges were dismissed.

         The District Court held a revocation of supervised release hearing based on the

conviction,1 as well as McNish’s failure to report to his Probation Officer at the

appointed times and failure to notify the Probation Officer of his change of address. At

the revocation hearing, McNish admitted to the violations.

         At sentencing, McNish sought a term of incarceration within the advisory

Guidelines range. McNish presented mitigating circumstances and urged the court not to

impose any period of supervised release. The District Court considered the factors set


1
  As a condition of his supervised release, McNish was not to commit another federal,
state, or local crime.
                                               2
forth in 18 U.S.C. § 3553(a) and sentenced McNish to twelve months of incarceration

and two years of supervised release.

                                        II. Jurisdiction

        The District Court had jurisdiction pursuant to 18 U.S.C. §§ 3231, 3583(e). We

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

                                   III. Standard of Review

        “In Anders v. California, 386 U.S. 738 (1967), the Supreme Court explained the

general duties of a lawyer representing an indigent criminal defendant on appeal when

the lawyer seeks leave to withdraw from continued representation on the grounds that

there are no nonfrivolous issues to appeal.” United States v. Marvin, 211 F.3d 778, 779

(3d Cir. 2000). Under Anders, counsel seeking to withdraw from representation must

“satisfy the court that he or she has thoroughly scoured the record in search of appealable

issues,” and “explain why the issues are frivolous.” Id. at 780. “The Court’s inquiry

when counsel submits an Anders brief is thus twofold: (1) whether counsel adequately

fulfilled [Third Circuit Local Appellate Rule 109.2’s] requirements;[2] and (2) whether an



2
    Local Appellate Rule 109.2 provides, in pertinent part:

          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 court] finds arguable merit to the appeal, or that the
          Anders brief is inadequate to assist the court in its review, it will appoint
                                                 3
independent review of the record presents any nonfrivolous issues.” United States v.

Youla, 241 F.3d 296, 300 (3d Cir. 2001). Where frivolousness is patent, however, “we

will not appoint new counsel even if an Anders brief is insufficient to discharge current

counsel’s obligations to his or her client and this court.” United States v. Coleman, 575

F.3d 316, 321 (3d Cir. 2009).

       A District Court’s decision to revoke supervised release is reviewed for abuse of

discretion. See United States v. Maloney, 513 F.3d 350, 354 (3d Cir. 2008). Factual

findings are reviewed for clear error, and legal issues are reviewed de novo. See id.

                                       IV. Analysis

       Counsel has satisfied his obligation to thoroughly search the record for any

appealable issues, and has identified all potentially appealable issues, none of which is

nonfrivolous. Only three issues could potentially form the basis of an appeal: (1) the

District Court did not have jurisdiction to revoke the term of supervised release being

served by McNish; (2) the District Court was required to find by a preponderance of the

evidence that McNish violated the conditions of supervised release, which was not

proven, see 18 U.S.C. § 3583(e); and (3) the District Court committed an abuse of

discretion by not giving meaningful consideration to the factors listed in 18 U.S.C. §

3553(a). McNish did not file a brief. The Government agrees with defense counsel that

no nonfrivolous issues exist on appeal.


        substitute counsel, order supplemental briefing and restore the case to the
        calendar.
                                             4
       The District Court had jurisdiction, pursuant to 18 U.S.C. § 3583, which grants

jurisdiction to the District Court over the imposition and revocation of McNish’s

supervised release. The underlying conviction and the violations of the conditions of

supervised release all occurred in the Middle District of Pennsylvania. Appeal of the

District Court’s decision on this basis would be frivolous.

       The second argument, that insufficient evidence existed to demonstrate the

violation occurred, is also without merit. District courts have the authority to revoke a

term of supervised release if they “find[] by a preponderance of the evidence that the

defendant violated a condition of supervised release.” 18 U.S.C. § 3583(e)(3). We have

emphasized that in order “to revoke probation it is not necessary that the probationer be

adjudged guilty of a crime, but only that the court be reasonably satisfied that he has

violated one of the conditions.” United States v. Poellnitz, 372 F.3d 562, 566 (3d Cir.

2004) (citing United States v. Manuszak, 532 F.2d 311, 317 (3d Cir. 1976)) (internal

quotations omitted). McNish pled to the state court charge and admitted to the technical

violations of his conditions of supervised release. Sufficient evidence existed to support

the District Court’s decision to revoke the supervised release.

       The third issue to address is whether the District Court gave sufficient weight to

the factors set forth in 18 U.S.C. § 3553(a). This issue also lacks merit. At the

revocation hearing, McNish raised several arguments seeking mitigation of his sentence.

The District Court considered the arguments, and concluded that the negative factors,

such as the short period of time McNish had been on supervision before the crime
                                             5
occurred, and McNish’s criminal history, particularly regarding drug related offenses,

warranted the sentence the District Court imposed. Further, the transcript of the

sentencing hearing amply demonstrates the District Court’s meaningful consideration of

the 18 U.C.S. § 3553(a) factors. There is no basis for appeal on this issue.

                                      V. Conclusion

       We find that no nonfrivolous issues exist for consideration on appeal. We will

grant Counsel’s motion to withdraw, pursuant to Anders, and affirm the judgment and

conviction of the District Court. Counsel is also relieved of any obligation to file a

petition for writ of certiorari in the Supreme Court. See 3d Cir. L.A.R. 109.2(b) (2011).




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