                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 15-1839
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                  DEVON WILLIAMS,
                                         Appellant
                                    ____________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                           (M.D. Pa. No. 3-14-cr-00244-001)
                      District Judge: Honorable James M. Munley
                                     ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 5, 2016

               Before: FISHER, RENDELL and BARRY, Circuit Judges.

                                  (Filed: April 13, 2016)
                                      ____________

                                        OPINION*
                                      ____________

FISHER, Circuit Judge.



       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       Appellant Devon Williams pleaded guilty in the United States District Court for

the Middle District of Pennsylvania to a one-count indictment for mailing a threatening

communication in violation of 18 U.S.C. § 876(c). He was sentenced to 48 months’

imprisonment, 18 months above the high-end of the applicable guideline range under the

United States Sentencing Guidelines. Williams appealed, and defense counsel moved to

withdraw his representation under Anders v. California, 386 U.S. 738 (1967). We will

affirm the District Court and grant defense counsel’s motion to withdraw.

                                              I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts that are necessary

to our analysis.

       Williams was sentenced to 48 months’ incarceration for mailing a threatening and

graphic letter to a Monroe County Court of Common Pleas judge. At the time the letter

was sent, Williams was incarcerated at the State Correctional Facility in Albion,

Pennsylvania for a state conviction for discharging a firearm in an occupied structure.

The letter was traced back to Williams, and he admitted to sending it.

       Based on this admission and other evidence linking Williams to the letter,

Williams was indicted and later pleaded guilty without a plea agreement. Prior to his plea

hearing, Williams signed a “Statement of Defendant” indicating that he understood the

consequences of pleading guilty, including the possibility of a five-year maximum

                                              2
sentence. This statement was acknowledged at the plea hearing that followed, and the

District Court conducted a thorough plea colloquy.

       After the plea hearing, a presentence investigation report (PSR) was completed by

the United States Probation Office. An addendum, however, was added to that PSR—

removing a two level reduction for acceptance of responsibility—because Williams had

attacked a fellow inmate while awaiting sentencing. No objections to the PSR were filed.

Williams did, however, file a sentencing memorandum requesting a two-month

downward variance.

       At sentencing, the Government moved for an upward variance or for a sentence at

the top of the guideline range. The District Court considered that motion and Williams’s

sentencing memorandum and corresponding motion. The District Court granted the

Government’s motion after a review of the 18 U.S.C. § 3553(a) sentencing factors.

Approval of that motion resulted in a sentence of 48 months’ incarceration, 18 months

above the high-end of the guideline range of 24 to 30 months.

       Williams timely appealed his sentence. Defense counsel determined that the

appeal was frivolous and requested permission to withdraw under Anders. Williams did

not file a pro se brief in response. The Government filed an untimely brief and an

unopposed motion to file its brief out of time.




                                             3
                                               II.1

       If, after a thorough examination of the record, court-appointed defense counsel

determines that an appeal would be “wholly frivolous,” then “he should so advise the

court[,] request permission to withdraw,” and submit a brief in support of that request,

identifying any issues “that might arguably support the appeal.”2

       Once counsel has filed an Anders motion and submitted a brief, it is our role to

decide whether the appeal before us is wholly frivolous. Our inquiry is twofold,

considering (1) “whether counsel adequately fulfilled [Local Appellate Rule 109.2(a)’s]

requirements;” and, (2) “whether an independent review of the record presents any

nonfrivolous issues.”3

                                               A.

       Under the first prong of a Rule 109.2(a) inquiry, counsel must present sufficient

information “to satisfy the court that counsel has thoroughly examined the record in

search of appealable issues, and . . . to explain why the issues are frivolous.”4 After

reviewing the record, we conclude that counsel has satisfied these requirements.

       Although counsel need not raise and reject every possible claim, he must

“provide[] sufficient indicia that he thoroughly searched the record and the law in service


       1
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and this Court
has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
       2
         Anders, 386 U.S. at 744.
       3
         United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).
       4
         Id.
                                              4
of his client so that we might confidently consider only those objections raised.” 5 In his

brief, counsel identified four possible issues for appeal and submitted a review of the law

and an appendix with the salient portions of the record. Such a compilation demonstrates

that counsel thoroughly searched the record and the law in service of his client.

Furthermore, counsel has set forth in his brief why the four issues raised are frivolous.

                                             B.

       Having satisfied the first prong, our next inquiry requires an “independent review”

of the record to determine whether Williams’s appeal presents any non-frivolous issues

for review.6 Where—as in this case—“the Anders brief initially appears adequate on its

face,” we scrutinize only the issues and portions of the record identified by the Anders

brief itself.7 “An appeal on a matter of law is frivolous where [none] of the legal points

[are] arguable on their merits.”8

       We agree with defense counsel that the four appealable issues identified in his

Anders brief lack any non-frivolous basis. First, we find that the District Court properly

exercised jurisdiction under 18 U.S.C. § 3231. Williams’s conduct occurred within the

Middle District of Pennsylvania, and mailing a threatening communication is a federal

offense. An appeal based on this issue has no merit.



       5
         Id. at 301 (internal quotation marks omitted).
       6
         Id. at 300.
       7
         Id. at 301.
       8
         Id. (internal quotation marks omitted).
                                              5
       Second, after a review of the District Court’s colloquy and the Statement of the

Defendant, we agree that the District Court fulfilled the requirements of Federal Rule of

Criminal Procedure 11. The District Court established that Williams understood the

consequences of waiving his constitutional rights and that Williams was knowingly and

voluntarily pleading guilty.9 An appeal based on the plea’s invalidity has no merit.

       We also agree with defense counsel that the District Court fully complied with

Federal Rule of Criminal Procedure 32 and that Williams’s sentence was both

procedurally and substantively reasonable. For procedural compliance, the District Court

was tasked with a three-step process: (1) correctly calculate the advisory guideline range,

(2) rule on departure motions, and (3) evaluate the 18 U.S.C. § 3553(a) factors and

explain the chosen sentence.10 Substantively, a sentence is reasonable if “the record as a

whole reflects rational and meaningful consideration of the factors enumerated in 18

U.S.C. § 3553(a).”11

       The District Court fulfilled these requirements. It correctly: (1) calculated the

guideline range to be 24 to 30 months’ imprisonment, without acceptance of

responsibility;12 (2) did not consider departure motions as there were none; and (3)

reviewed the § 3553(a) factors—along with the parties’ requests—and determined that,

       9
        See United States v. Schweitzer, 454 F.3d 197, 202–203 (3d Cir. 2006).
       10
         United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006).
      11
         Schweitzer, 454 F.3d at 204 (internal quotation marks omitted).
      12
         United States v. Ceccarini, 98 F.3d 126, 130 (3d Cir. 1996) (sentencing court
may consider a defendant’s “unrelated pre-sentencing conduct” to deny a reduction for
acceptance of responsibility).
                                            6
despite certain factors in Williams’s favor, Williams’s history of violence coupled with

the threatening and graphic nature of the letter required a higher sentence. Accordingly,

any procedural or substantive sentencing argument would be frivolous.

       Finally, we agree with defense counsel that the record is insufficient to review a

claim that trial counsel was insufficient.13 Consequently, we find nothing in the record to

support a non-frivolous appeal.

                                            III.

       For the reasons set forth above, we will affirm the order of the District Court and

grant defense counsel’s request to withdraw. The Government’s unopposed motion to

file a brief out of time is granted.14




       13
           We generally do not entertain a claim of ineffective assistance of counsel on
direct appeal because an assessment of counsel’s conduct requires a developed record.
Gov’t of Virgin Islands v. Vanterpool, 767 F.3d 157, 163 (3d Cir. 2014).
        14
           See L.A.R. 31.4.
                                              7
