                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 14-2052
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                 ANDRE W. SIZEMORE,
                                              Appellant
                                    _____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                         (D.C. Crim. No. 12-cr-00233-001)
                   District Judge: Honorable Joy Flowers Conti
                                  ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   October 9, 2015
                                    ____________

                Before: FUENTES, SMITH and BARRY, Circuit Judges

                           (Opinion Filed: November 12, 2015)
                                     ____________

                                        OPINION*
                                      ____________


BARRY, Circuit Judge

       Andre W. Sizemore appeals his conviction and 92-month sentence of


*
  This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
imprisonment for possession of a firearm and ammunition, in violation of 18 U.S.C.

§ 922(g)(1). His attorney has moved to withdraw under Anders v. California, 386 U.S.

738 (1967). For the following reasons, we will grant the motion to withdraw and affirm

the judgment of the District Court.

                                            I.

       In June 2012, Sizemore was arrested in Pittsburgh on an outstanding warrant. At

the time of his arrest, he was found to be carrying a stolen, loaded, .45 caliber Rock

Island Armory handgun. He was subsequently charged with being a felon-in-possession

of a firearm and ammunition, in violation of § 922(g)(1). After requesting and receiving

a preliminary pre-sentence investigation report (“PSR”) determining his criminal history,

and upon confirmation from the government that it would not seek to impose penalties

under the Armed Career Criminal Act, Sizemore entered an open guilty plea on

November 26, 2013.

       The final PSR calculated Sizemore’s Guidelines range to be 92 to 115 months,

based on a criminal history category of VI and a total offense level of 23, which included

a two-level enhancement because the firearm was stolen. See U.S.S.G. § 2K2.1(b)(4)(A).

At sentencing, Sizemore objected to the two-level enhancement because, he argued, he

had not known that the firearm was stolen. Defense counsel acknowledged that the

Guidelines’ official commentary states that the subsection applies “regardless of whether

the defendant knew or had reason to believe that the firearm was stolen.” See § 2K2.1

cmt. n.8(B). Nevertheless, counsel asked the court “to overrule the application of the

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enhancement on the basis of fundamental fairness.” (App. 58.)

      The District Court rejected Sizemore’s objection to the enhancement and

sentenced him to 92 months’ imprisonment, the bottom of the Guidelines range. Prior to

imposing sentence, the Court heard testimony from five witnesses—family and friends of

Sizemore—on his behalf. Sizemore also addressed the Court, and the Court questioned

him at some length about his mental health condition and his goals. After imposing its

sentence, the Court provided a detailed explanation of its reasons, addressing each of the

factors of 18 U.S.C. § 3553(a).

                                           II.1

      Under Anders v. California, an attorney who has concluded, after a “conscientious

examination” of the record, that his client’s appeal is “wholly frivolous” may so advise

the court and request permission to withdraw. 386 U.S. at 744. Such request “must,

however, be accompanied by a brief referring to anything in the record that might

arguably support the appeal.” Id. When counsel submits an Anders brief, we must assess

“(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 this case, counsel’s Anders brief reflects a conscientious examination of the

record and identifies only one potential issue for appeal: whether Sizemore’s sentence is

procedurally and substantively reasonable.        Our independent review of the record

1
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
                                             3
confirms that such an appeal would be “wholly frivolous,” and we find no other

nonfrivolous issues. The District Court conducted an exemplary sentencing proceeding,

and there is nothing from which we could conclude that its sentence was procedurally or

substantively unreasonable. Any potential challenge to the lack of a scienter requirement

in § 2K2.1(b)(4) is foreclosed by binding precedent of our Court. See United States v.

Mobley, 956 F.2d 450 (3d Cir. 1992) (rejecting statutory and constitutional challenges to

the lack of a scienter requirement in § 2K2.1(b)(4)). Other Courts of Appeals are in

accord. See United States v. Taylor, 659 F.3d 339, 343-44 (4th Cir. 2011) (collecting

cases and observing that “[i]t is . . . unsurprising that every circuit to have considered a

challenge to the sentencing enhancement in section 2K2.1(b)(4)(A) has upheld the

guideline”).

       In his pro se briefs and motion for appointment of new counsel, Sizemore argues

that we should appoint counsel to permit him to litigate his claim that he is “actually

innocent” of “all the charges.”     He does not, however, assert any claim of factual

innocence. Instead, he raises various issues challenging the authority and jurisdiction of

the District Court, none of which has merit.2




2
 Indeed, several of the issues raised by Sizemore bear no relation to the facts of his case.
For example, he raises the issues of whether the District Court has the power to imprison
him “and not give him notice at any time that he was being held in contempt,” and
whether he can remain imprisoned “without any order of the district court directing that
he remain imprison[ed] . . . until his criminal fine is paid.” (Pro Se Reply Br. at 7.)
There is no evidence in the record, however, that Sizemore was ever held in contempt or
subject to a criminal fine.
                                             4
                                       III.

       We will grant counsel’s motion to withdraw and affirm the judgment of the

District Court.




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