                                                 NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            _____________

                                 No. 12-1246
                                _____________

                        UNITED STATES OF AMERICA

                                       v.

                            IRVINE HODGE, JR.,
                                 Appellant
                               ____________

                        On Appeal from the District Court
                               of the Virgin Islands
                      District Court No. 3-99-cr-00006-002
               District Judge: The Honorable Anne E. Thompson

               Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                              December 7, 2012

           Before: SMITH, HARDIMAN, and ROTH, Circuit Judges

                          (Filed: December 20, 2012)
                           _____________________

                                  OPINION
                           _____________________

SMITH, Circuit Judge.

      In April 2000, Irvine Hodge, Jr., and his younger brother, Devin Hodge,

accepted a “package” plea deal and pleaded guilty to murdering the owner of a

jewelry store in violation of 18 U.S.C. § 924(j)(1). The package plea agreement
                                       1
provided    that   the   government        would   make   “no   specific   sentencing

recommendation other than to request that the sentence be within the guideline

range.” Thereafter, the District Court held a joint hearing and sentenced both

Irvine and Devin to life imprisonment. Devin argued on direct appeal that the

government had breached its plea agreement at sentencing by implicitly requesting

a life sentence. United States v. Devin Hodge, 412 F.3d 479, 484 (3d Cir. 2005).

We agreed, vacated Devin’s sentence, and remanded the matter to the District

Court to determine whether it should grant specific performance of the plea

agreement or allow withdrawal of the guilty plea. Id. at 486-87.

      Irvine failed to file a notice of appeal, but he did seek collateral relief under

28 U.S.C. § 2255, raising the same argument put forth by his brother.              We

concluded that Irvine demonstrated cause and prejudice for the failure to file a

direct appeal. United States v. Irvine Hodge, 554 F.3d 372, 379 (3d Cir. 2009). As

a remedy, we vacated his sentence, remanded Irvine’s case to the District Court,

and instructed the District Court to re-enter the same sentence so that Irvine could

file a timely direct appeal. Id. at 382.

      On remand, the District Court re-imposed Irvine’s life sentence. This time,

Irvine filed a timely appeal, raising the argument that his brother Devin had

successfully pressed. We agreed that the government had treated Irvine in the

same manner as it had treated Devin. United States v. Irvine Hodge, 389 F. App’x

                                             2
96, 102 (3d Cir. 2010). Accordingly, we determined that the government had

breached its package plea agreement with Irvine just as we had held on Devin’s

direct appeal. Likewise, we vacated Irvine’s life sentence and remanded the case

to the District Court to determine whether to order specific performance of the

package plea agreement or to allow Irvine’s withdrawal of his guilty plea. Id. at

104.

       In the meantime, Devin Hodge withdrew his guilty plea, and entered a

second guilty plea pursuant to a new plea agreement. The District Court imposed a

sentence of 450 months of imprisonment. See Devin Hodge v. United States, 276

F. App’x 120, 121 (3d Cir. 2008).

       Irvine sought the same treatment that his brother Devin had received. On

remand, Irvine filed a motion seeking to withdraw his guilty plea. See Def.’s Mot.

Withdraw, United States v. Irvine Hodge, No. 3:99-cr-06-2 (D.V.I. May 4, 2011,

2011), ECF No. 278. At a hearing on the motion, Irvine renewed his request to

withdraw his guilty plea. In response, the government acknowledged that some

deference should be given to the defendant’s choice of remedy.            But the

government emphasized that the defendant’s choice was not absolute. It explained

the difficulty that would arise if the case proceeded to trial because the victim’s

wife, a second victim of the shooting, and an eyewitness were no longer residing in

the Virgin Islands. The District Judge, who had not presided over this prosecution

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in the first instance, asked if Irvine had confessed during the earlier proceeding.

The government advised that Irvine had not confessed, but that he had made a

statement at the change of plea proceeding. The government further noted that the

Third Circuit had not found any deficiency in the plea proceeding and that Irvine

had not asserted his innocence since his life sentence was vacated.

      Defense counsel advised that Irvine still wanted to withdraw his guilty plea.

After a brief recess, counsel pointed out that the District Judge had presided over

Devin’s case on remand and had determined that the appropriate remedy in

Devin’s case was to allow him to withdraw his guilty plea. In light of that, Irvine’s

counsel urged the District Judge to permit Irvine to likewise withdraw his guilty

plea. But, as the government rejoined, there was already a new plea agreement

between the parties in Devin’s case.

      The District Judge acknowledged that she had presided over Devin’s case on

remand. Although she was unable to recall the exact sequence of events, she was

aware that Devin had not sought a new trial, but only to avoid a life sentence.

      Before ruling on Irvine’s motion to withdraw his guilty plea, the District

Judge appropriately noted the applicable legal authority in Santobello v. New York,

404 U.S. 257, 263 (1971), and United States v. Moscahlaidis, 868 F.2d 1357, 1363

(3d Cir. 1989), and that it is the trial court that must determine whether to remedy

the government’s breach of a plea agreement by requiring specific performance of

                                          4
the plea agreement or by allowing the defendant to withdraw his guilty plea.

Irvine, the District Judge observed, had fired the fatal close-range shot to the store

owner’s head and pleaded guilty. Yet he sought to withdraw his plea, not because

of a defect in that change of plea proceeding, but because of the error that occurred

at sentencing. In light of the circumstances, the Court concluded that specific

performance was the appropriate remedy.

      Santobello instructs that the specific performance remedy requires assigning

the matter to a new judge for resentencing. 404 U.S. at 263. Because the District

Judge had not imposed the original sentence on the brothers, the parties agreed to

have the District Judge impose Irvine’s new sentence.

      At resentencing, Irvine objected only to a minor item in the presentence

report that is not material to this appeal. Irvine’s offense level of 40 and criminal

history category of II yielded a guideline range of 324 to 405 months. After

hearing argument on the 18 U.S.C. § 3553 sentencing factors and noting that the

guidelines were only advisory, the Court imposed an above-guidelines sentence of

410 months of imprisonment. It explained that the sentence reflected Irvine’s

greater culpability as the “trigger man.” In addition, the Court directed that his

sentence be served concurrently with a separate sentence for an earlier robbery of

the same jewelry store. Subsequently, the Court issued an amended judgment,

changing Irvine’s term of imprisonment from 410 months to 405 months.

                                          5
      A timely appeal followed.1 Defense counsel filed a brief pursuant to Anders

v. California, 386 U.S. 738 (1967), contending that there were no nonfrivolous

issues to present on appeal. After setting forth an overview of the facts and the

procedural history, counsel noted that the only issue he could present on appeal

was that the District Court erred by concluding that specific performance of the

plea agreement was the appropriate remedy for the government’s breach of the

plea agreement. Counsel correctly noted that, under Santobello, it is the trial court

that must exercise discretion in selecting the remedy for the government’s breach

of the plea agreement. 404 U.S. at 263. Under the circumstances and in light of

the deferential standard of review, counsel concluded that the issue of whether the

Court had abused its discretion in ordering specific performance was frivolous.

      In accordance with Third Circuit L.A.R. 109.2(a), the Clerk advised Irvine

that he could submit a pro se brief. Irvine did so, and he argued that the District

Judge erred by deciding that specific performance was the appropriate remedy. He

faulted the District Judge for relying on her memory of what occurred on remand

with his brother Devin’s case. He asserted that the District Judge’s recollection

was incorrect and that his brother had been allowed to withdraw his plea. Irvine

stated that his case should be remanded so he could withdraw his plea just as his


1
  The District Court exercised jurisdiction under 48 U.S.C. § 1612 and 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a).
                                         6
brother Devin had done.

      When counsel submits an Anders brief, our inquiry is “twofold:” (1) whether

counsel adequately fulfilled the requirements of Anders; 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) (citing United States v. Marvin, 211

F.3d 778, 780 (3d Cir. 2000)). For that reason, we consider whether counsel has

adequately examined the record in search of appealable issues and whether he has

sufficiently “explain[ed] why the issues are frivolous.” Id. (citing Marvin, 211

F.3d at 780).

      We are mindful of Irvine’s contention that the District Judge erred by

relying on her recollection because it was incorrect. The Judge’s recollection,

however, was not erroneous with respect to Devin’s intention to maintain his plea

of guilty. Because the parties had already resolved the approach they would take

on remand in Devin’s case, the District Judge did not have to weigh the

circumstances and determine the appropriate remedy for the government’s breach

of the plea agreement. As a consequence, the course taken in Devin’s case was not

instructive.

      Here, the record demonstrates that there was no agreement between the

parties regarding how to proceed on remand. Furthermore, it appeared to the

District Judge that Irvine wanted to withdraw his guilty plea in order to proceed to

                                         7
trial. The Judge appropriately considered the lack of any deficiency in the change

of plea proceeding and the extent of Irvine’s culpability for the crime to which he

pleaded guilty.    In concluding that specific performance was the appropriate

remedy, the District Judge adhered to our instructions in the mandate, took account

of all of the circumstances, considered the consequences of the two remedies, and

exercised her discretion by requiring specific performance of the plea agreement to

murder. Therefore, the District Judge did not abuse her discretion by ordering

specific performance.2

         In sum, we conclude that Irvine’s counsel fulfilled his obligation of

examining the record in search of appealable issues. Because our independent

review has not revealed any issue of arguable merit, we will affirm the judgment of

the District Court. We also grant counsel’s motion to withdraw. Furthermore, we

certify that the issue presented in the appeal lacks legal merit and does not require

counsel to file a petition for a writ of certiorari with the United States Supreme

Court.




2
   Neither Irvine nor his counsel challenged his sentence. His counsel noted that
the sentence was within the guidelines range. Our independent review of the
record fails to reveal any basis to argue that the sentence was either procedurally or
substantively unreasonable.

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