                                                  NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   _____________

                       No. 11-1953
                      _____________

             UNITED STATES OF AMERICA

                             v.

                   MAURICE NICHOLS,
           also known as MICHAEL PETERSON

                                   Maurice Nichols,
                                    Appellant
                     _______________

       On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
                  (D.C. No. 09-cr-730-001)
         District Judge: Hon. Michael M. Baylson
                     _______________

         Submitted Under Third Circuit LAR 34.1(a)
                      June 28, 2012

Before: SLOVITER, CHAGARES, and JORDAN, Circuit Judges.

                   (Filed: June 29, 2012)
                     _______________

                OPINION OF THE COURT
                    _______________
JORDAN, Circuit Judge.

       Maurice Nichols appeals the sentence imposed by the United States District Court

for the Eastern District of Pennsylvania following his plea of guilty to possessing cocaine

with the intent to distribute. 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.

I.     Background

       On May 6, 2009, a Pennsylvania state trooper pulled Nichols over for failing to

stop at an intersection. During the stop, the officer asked Nichols for his driver’s license,

registration, and proof of insurance. Nichols surrendered a rental agreement in the name

of Dana Douglas and a license in the name of Michael Peterson. The officer noticed that,

according to the rental agreement, the car was overdue to be returned. When he ran the

license, the officer learned that “Michael Peterson” is an alias used by Nichols, that

Nichols’s license had been suspended, and that the individual whose photograph appears

on both licenses is the same.

       The officer instructed Nichols to exit the vehicle and explained that the car was

going to be impounded. While searching the car, the officer found 499 grams of cocaine

in the glove compartment, $13,130 in cash under the passenger seat, and three cell

phones. When the officer began to place Nichols under arrest, Nichols fled on foot but

was quickly apprehended. He was subsequently released on bail.




                                              2
       On November 17, 2009, a federal grand jury indicted Nichols for possessing 499

grams of cocaine with the intent to distribute, in violation of 21 U.S.C. § 841.1 The

District Court issued a warrant for Nichols’s arrest and the FBI subsequently took him

into custody. In the course of that arrest, agents seized $8,105 in cash, a watch valued at

approximately $13,000, and six cell telephones.2

       Nichols moved to suppress the evidence found during the May 6 search of the

rental car but withdrew that motion on the day of the suppression hearing. During a

July 26, 2010 appearance, Nichols informed the District Court that he wished to obtain

new counsel. The Court granted a continuance for Nichols to obtain new counsel and his

new attorney filed a second motion to suppress the evidence found during the May 6th

search. That motion was also withdrawn before the scheduled suppression hearing.

       Nichols’s trial was scheduled for September 27, 2010. On September 22, 2010,

however, Nichols appeared for a change of plea hearing and pled guilty.3


       1
         Section 841 states that “it shall be unlawful for any person [to] knowingly or
intentionally … possess with intent to … distribute … a controlled substance.” 21 U.S.C.
§ 841(a)(1).
       2
        Nichols again had a Pennsylvania driver’s license in the name of Michael
Peterson and told the FBI that he did not use the name Maurice Nichols.
       3
         Before Nichols entered a guilty plea, the District Court advised him that he was
under oath, that he had to answer truthfully, and that if he did not answer truthfully, he
could be prosecuted for perjury. Nichols was advised that he could stop to confer with
his attorney at any point during the proceeding. The Court advised Nichols to notify the
Court before answering any questions that he did not understand. The Court informed
Nichols of his constitutional right to trial by jury, to be found guilty beyond a reasonable
doubt, to confront his accusers, and to cross-examine witnesses. The Court asked if
Nichols understood that, by pleading guilty, he gave up those constitutional rights.
Nichols answered in the affirmative. Nichols ultimately admitted to the events of May 6,
2009 and to possessing 499 grams of cocaine with the intent to distribute.

                                             3
       Prior to Nichols’s sentencing hearing, the government prepared a presentence

investigation report (“PSR”), which stated that, under 21 U.S.C. § 841,4 the statutory

maximum was 30 years, and that, in light of the crime of conviction and Nichols’s past,

the base offense level would ordinarily be 24 and the criminal history category would be

III. Because Nichols had three prior felony convictions for drug-related offenses,5

however, he was classified as a career offender, so his offense level was increased to 34,

and his criminal history category was increased to VI. U.S.S.G. § 4B1.1.6 In light of his

guilty plea, Nichols received a two-level reduction for acceptance of responsibility,

U.S.S.G. § 3E1.1(a). Consequently, Nichols’s final offense level was 32 and his criminal

history category was VI, providing for a guideline range of 210 to 262 months’

imprisonment.



       4
         Section 841 provides that “[i]f any person [possesses cocaine with the intent to
distribute] after a prior conviction for a felony drug offense has become final, such
person shall be sentenced to a term of imprisonment of not more than 30 years … .” 21
U.S.C. § 841(b)(1)(C).
       5
        Nichols pled guilty to three instances of manufacturing and delivering cocaine
base occurring between 1999 and 2001 and to carrying a firearm without a license in
2003 in the Philadelphia Court of Common Pleas. Each of the drug offenses carried a
one year sentence of intermediate punishment involving house arrest and inpatient
treatment. Further, each of the drug offenses is a felony under Pennsylvania law. 35 Pa.
Cons. Stat. Ann. §§ 780-113(a)(30), (f)(1).
       6
          Section 4B1.1 provides that “[a] defendant is a career offender if (1) the
defendant was at least eighteen years old at the time the defendant committed the instant
offense of conviction; (2) the instant offense of conviction is a felony that is either a
crime of violence or a controlled substance offense; and (3) the defendant has at least two
prior felony convictions of either a crime of violence or a controlled substance offense.”
U.S.S.G. § 4B1.1. Where the offense statutory maximum is 25 years or more, the offense
level is increased to 34 and the criminal history category is increased to VI. U.S.S.G.
§ 4B1.1(b).

                                             4
       At the sentencing hearing on February 3, 2011, Nichols offered no “objections to

the presentence report.” (App. at 80a.) Nevertheless, he requested a reduced sentence

based on mitigating factors and called witnesses to attest to his good character and

involvement in the community. Nichols further requested leniency based on a desire to

be involved in the lives of his two children. While the District Court observed that it had

discretion to impose a sentence below the guidelines, it declined to do so because of

Nichols’s “serious criminal record,” his conduct during and after the arrest, and the

absence of mitigating factors. (App. at 100-101a.) The Court concluded that Nichols

was “not entitled to any credit for having children” and, in fact, that being a father should

have motivated Nichols to abandon his criminal activities. (Id.) The Court also noted

that, although Nichols was twice apprehended with a substantial amount of money and an

expensive watch, he had no employment record for at least the past five years. Nichols’s

attorney conceded that the only inference to be drawn from those facts was that the cash

was “drug money.” (App. at 93a.) The Court concluded that Nichols “need[ed]

incarceration for a substantial period of time to correct [his] behavior” and sentenced him

to 210 months’ imprisonment, the bottom of the guidelines range. (App. at 101a.)




                                              5
II.    Discussion7

       Submitting that all potential issues for appeal are frivolous, Nichols’s attorney

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),8


       7
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. Nichols’s
notice of appeal was filed more than 14 days after the February 3, 2011 entry of his
sentence and was thus untimely under Federal Rule of Appellate Procedure 4(b). Fed. R.
App. P. 4(b)(1)(A)(i) (“In a criminal case, a defendant’s notice of appeal must be filed in
the district court within 14 days after the later of … the entry of either the judgment or
the order being appealed … .”). Rule 4(b), however, “is not jurisdictional and is subject
to forfeiture.” Virgin Islands v. Martinez, 620 F.3d 321, 327 (3d Cir. 2010). Here, the
government does not invoke Rule 4(b) and, as a result, it has “clearly forfeited the
untimeliness argument available to it.” Id. at 327-29. While the government’s forfeiture
may not prevent us from sua sponte dismissing Nichols’s appeal, cf. Long v. Atlantic City
Police Dep’t, 670 F.3d 436, 445 n.18 (3d Cir. 2012) (noting, in civil cases, that we are
not precluded “from dismissing, sua sponte, untimely appeals filed under Appellate Rule
4(a)(4)(A),” which is non-jurisdictional), we will exercise jurisdiction over this appeal
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
       8
           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
                                             6
and second, we examine whether an independent review of the record presents any non-

frivolous 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) (citation omitted).

       The Anders brief here identifies five potentially appealable issues: whether

Nichols’s guilty plea was knowing and voluntary, whether the District Court erred by

classifying Nichols as a career offender, whether the District Court erred by failing to

make an additional reduction to the offense level for acceptance of responsibility,



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

                                             7
whether the sentence was procedurally sound, and whether the sentence was

substantively reasonable. We are satisfied that the Anders brief is adequate and will

confine our review to the issues raised therein.

       A.     Nichols’s Guilty Plea

       Counsel submits that Nichols’s guilty plea satisfied the appropriate legal

requirements including the requirement that it be knowing and voluntary. See McCarthy

v. United States, 394 U.S. 459, 464-66 (1969) (“Rule 11 expressly directs the district

judge to inquire whether a defendant who pleads guilty understands the nature of the

charge against him and whether he is aware of the consequences of his plea.”); Fed. R.

Crim. P. 11(b)(1). For a plea to be made knowingly and voluntarily, a district court must

ensure that it is made by a person of competent intelligence, with a full understanding of

its nature and effect, and of the facts on which it is founded. United States ex rel.

Broaddus v. Rundle, 429 F.2d 791, 793-94 (3d Cir. 1970). We conclude that the record

shows that Nichols knowingly and voluntarily entered his guilty plea. The Court ensured

that Nichols understood the nature of the charge against him, the maximum sentence and

other available penalties, and the rights that he would waive by pleading guilty. Further,

Nichols testified that he was not forced to plead guilty and that the government’s factual

basis for the plea was accurate.

       B.     The Sentence Imposed

       Nichols’s counsel also examined several aspects of the District Court’s sentencing

decision, submitting that it was procedurally sound and substantively reasonable, that the

Court made no error in classifying Nichols as a career offender, and that the Court made

                                              8
no error in failing to make an additional reduction in his offense level for acceptance of

responsibility. We review the sentencing decision of the 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). “[A]s a

matter of administration and to secure nationwide consistency, the Guidelines should be

the starting point and the initial benchmark.” Gall v. United States, 552 U.S. 38, 49

(2007). In our review, we must ensure that the District Court committed no significant

procedural error in arriving at its decision, “such as … failing to consider the § 3553(a)

factors,[9] selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence … .” United States v. Wise, 515 F.3d 207, 217 (3d Cir.

2008).

                i.     Classification as a Career Offender

         In his pro se submission, Nichols argues that the District Court erred during

sentencing in accepting the PSR’s enhancement for his prior drug-related offenses.

Nichols has three prior felony convictions for drug-related offenses. See supra note 5.

Nichols’s trial attorney argued for a sentence below the guidelines because his prior

convictions involved small amounts of narcotics, he was young when convicted, and he

presented a low risk for recidivism. Those arguments, however, have no bearing on the

         9
        Section 3553(a) provides for a number of factors to be considered in imposing a
sentence, including the nature and circumstances of the offense, the characteristics of the
defendant including his criminal history, the need for the sentence to reflect the
seriousness of the offense and to deter future criminal conduct, the kinds of sentences
available, the need to avoid unwarranted disparities between sentences for similar crimes,
and the need to provide restitution to any victims. 18 U.S.C. § 3553(a).

                                               9
fact that his prior convictions plainly meet the guidelines requirement for enhancement

pursuant to U.S.S.G. § 4B1.1, and the record is devoid of support for any argument to the

contrary. Therefore, we conclude, as has Nichols’s counsel, that the District Court did

not err in accepting the PSR’s enhancement and that any dispute about the career

offender classification is frivolous.

              ii.     Downward Departure for Acceptance of Responsibility

       While the District Court subtracted two levels for Nichols’s admission of guilt

under U.S.S.G. § 3E1.1(a),10 Nichols argues that an additional level should have been

subtracted for his admission of guilt under U.S.S.G. § 3E1.1(b).11 Section 3E1.1(b),

however, requires that the government make a motion before the District Court can grant

such an adjustment. See United States v. Drennon, 516 F.3d 160, 162 (3d Cir. 2008)

(“[A] motion from the government is … a necessary predicate to the granting of a

downward adjustment under § 3E1.1(b).”).12 The government made no such motion.


       10
        Section 3E1.1(a) provides that “[i]f the defendant clearly demonstrates
acceptance of responsibility for his offense, decrease the offense level by 2 levels.”
       11
          Section 3E1.1(b) provides that “[i]f the defendant qualifies for a decrease under
subsection (a), the offense level determined prior to the operation of subsection (a) is
level 16 or greater, and upon motion of the government stating that the defendant has
assisted authorities in the investigation or prosecution of his own misconduct by timely
notifying authorities of his intention to enter a plea of guilty, thereby permitting the
government to avoid preparing for trial and permitting the government and the court to
allocate their resources efficiently, decrease the offense level by 1 additional level.”
       12
          The government’s discretion is only subject to constitutional or arbitrariness
restraints, such as where the motive for not requesting the additional downward departure
“is based on the defendant’s race, religion, or gender.” Drennon, 516 F.3d at 162
(citation omitted). There is no claim that the government’s failure to request a downward
departure was motivated by race, religion, or gender, and any such assertion would be
frivolous.

                                             10
Any argument that the District Court should have made an additional reduction to his

offense level for acceptance of responsibility is thus frivolous, as Nichols’s counsel

rightly acknowledges.

              iii.   Procedural and Substantive Reasonableness of the Sentence

       Nichols’s counsel submits that there were no procedural or substantive errors in

the sentencing. A review of the transcript reflects that the District Court gave meaningful

consideration to the § 3553(a) factors in sentencing Nichols. The Court considered

Nichols’s offense, his criminal history, and the arguments he offered in support of a

mitigated sentence. The Court noted that it had discretion, but ultimately chose to give

Nichols a sentence at the bottom of the guidelines.13 In doing so the Court noted that

Nichols had not had a legitimate job for at least five years, had prior convictions for drug

offenses, and had attempted to escape from police when caught with a substantial amount

of cocaine. Such facts provide a sound basis for the sentence imposed and render it

substantively reasonable. Thus, any argument that the sentencing was procedurally

unsound or substantively unreasonable is frivolous.

III.   Conclusion

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

sentence imposed by the District Court.




       13
          Nichols argues that the Court erred when it failed to express that it had
discretion to make a downward variance. He is incorrect. The District Court stated that
it “kn[e]w [that it] ha[d] some discretion” but “fe[lt] [that] this is a case that should be
governed by the guidelines.” (App. at 100a.)

                                             11
