                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                  No. 10-2735
                                _____________
                          UNITED STATES OF AMERICA

                                           v.

                                  DAVID TUCKER,
                                           Appellant
                                  _______________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                             (D.C. No. 08-cr-00756-001)
                        District Judge: Hon. Stewart Dalzell
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 15, 2011

              Before: RENDELL, JORDAN and BARRY, Circuit Judges.

                              (Filed: September 16, 2011)
                                   _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      David Tucker appeals the May 28, 2010 judgment of the United States District

Court for the Eastern District of Pennsylvania sentencing him to 120 months‟
imprisonment, 5 years‟ supervised release, $2,145 restitution, and $200 in special

assessments for committing armed bank robbery, in violation of 18 U.S.C. § 2113(d), and

for carrying and using a firearm during a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1). Tucker‟s counsel has moved to withdraw pursuant to Anders v. California,

386 U.S. 738 (1967). For the reasons that follow, we will grant the motion to withdraw

and affirm the District Court‟s judgment.

I.     Background

       On October 14, 2008, Tucker entered a PNC Bank and approached the tellers,

brandishing a revolver. While yelling threats and pointing the gun at the tellers, he slid a

black plastic bag under the protective glass and demanded that they fill it with money. A

teller filled the bag with approximately $2,145 and slid it back under the glass. Tucker

took the bag and fled.

       A week later, two FBI agents arrested Tucker for the robbery. After waiving his

Miranda rights, Tucker admitted to the agents that he had robbed the PNC Bank on

October 14, 2008. He was later charged with the robbery and firearms offenses as

recounted above.

       At a plea hearing on January 21, 2010, the District Court explained to Tucker the

rights he would forfeit by pleading guilty and confirmed that he was entering his plea

voluntarily. Tucker then pled guilty to both counts.

       At sentencing, the Court reviewed the Presentence Investigation Report (“PSR”),

which, based on Tucker‟s conduct and background, calculated an offense level of 19 and

a criminal history category of II. Those calculations resulted in a Guidelines range of 33

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to 41 months‟ imprisonment for the armed robbery count, plus a mandatory consecutive

term of 84 months for the firearms count. Tucker did not object to those calculations. He

did, however, request a downward variance based on his post-offense cooperation and

psychiatric history. The Court considered Tucker‟s mental condition and his ability to be

rehabilitated but, due to the seriousness of the crime and the unclear link between the

crime and his mental condition, decided not to vary downward.

       Ultimately, the Court sentenced Tucker to 36 months for robbery “to be followed

by 84 months as a mandatory consecutive sentence.” (App. at 74.) He was additionally

sentenced to 5 years‟ supervised release and was required to pay restitution of $2,145 and

special assessments of $200.

       Tucker timely appealed. His counsel has moved to withdraw and has filed a brief

pursuant to Anders, supporting the motion. Tucker has not filed a pro se brief.

II.    Discussion1

       A.     Standard of Review

       Under Anders, counsel may seek to withdraw from representing an indigent

criminal defendant on appeal if there are no nonfrivolous issues to appeal. United States

v. Marvin, 211 F.3d 778, 779 (3d Cir. 2000). We exercise plenary review to determine

whether there are any such issues. See Penson v. Ohio, 488 U.S. 75, 80 (1988) (noting

that, in the Anders context, a court must conduct an “examination of all the proceedings”

(internal quotation marks omitted)). Whether an issue is frivolous is informed by the


       1
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                             3
standard of review for each potential claim raised. See United States v. Schuh, 289 F.3d

968, 974-76 (7th Cir. 2002).

       B.     Anders Analysis

       We implement Anders through our Local Appellate Rule (“L.A.R.”) 109.2(a),

which provides, in relevant part, as follows:

       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 counsel‟s Anders motion, and dispose
       of the appeal without appointing new counsel.

3d Cir. L.A.R. 109.2(a). We ask two principal questions when counsel proceeds under

Anders: whether counsel has “adequately fulfilled” the requirements of L.A.R. 109.2(a)

and whether an independent review of the record presents any nonfrivolous issues.

United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).

       The first question – whether counsel has “adequately fulfilled” the requirements of

L.A.R. 109.2(a) – often turns, as it does here, on the adequacy of counsel‟s supporting

brief. To be adequate under L.A.R. 109.2(a), an Anders brief must (1) “satisfy the court

that counsel has thoroughly examined the record in search of appealable issues,” Youla,

241 F.3d at 300; (2) identify issues that might arguably support an appeal, see Smith v.

Robbins, 528 U.S. 259, 285 (2000); and (3) “explain why th[ose] issues are frivolous[,]”

Marvin, 211 F.3d at 780. “Counsel need not raise and reject every possible claim[,]” but

he or she must still conscientiously examine the record. Youla, 241 F.3d at 300.


                                                4
       The second question – whether an independent review of the case raises

nonfrivolous issues – requires us to examine the record to determine whether the appeal

“lacks any basis in law or fact.” McCoy v. Court of Appeals of Wis., 486 U.S. 429, 438

n.10 (1988). Where the Anders brief is adequate, we confine our review to those

portions of the record implicated by the Anders brief. Youla, 241 F.3d at 301. Where 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 Anders brief, we may affirm the District Court 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) (internal quotation

marks omitted).

       Here, counsel has identified in the Anders brief three potential issues for appeal:

jurisdiction; the validity and voluntariness of the plea; and the legality of the sentence.

Having reviewed the Anders brief, we are satisfied that counsel has conscientiously

examined the record. Accordingly, we confine our independent review of the record to

the issues raised in that brief.

               1.     Jurisdiction

       The first issue raised pertains to the District Court‟s jurisdiction. The district

courts have “original jurisdiction, exclusive of the courts of the States, of all offenses

against the laws of the United States.” 18 U.S.C. § 3231. By perpetrating an armed bank

robbery, Tucker was committing “offenses against the laws of the United States,”

                                               5
specifically 18 U.S.C. §§ 2113(d) and 924(c)(1).2 Accordingly, the District Court had

jurisdiction to adjudicate the case, and the issue is frivolous.

              2.      Knowing and Voluntary Plea

       The second issue raised pertains to whether the District Court properly determined

that Tucker‟s plea was knowing and voluntary. To withstand challenge, a guilty plea

must comply with the requirements of Rule 11 of the Federal Rules of Criminal

Procedure, which embodies the “constitutional requirement that a guilty plea be

„knowing‟ and „voluntary.‟” United States v. Schweitzer, 454 F.3d 197, 202 (3d Cir.

2006). A defendant asserting a Rule 11 error for the first time on appeal must show plain

error, that is, error that is plain or obvious and that affects his substantial rights. United

States v. Goodson, 544 F.3d 529, 539 (3d Cir. 2008). Such error can be the basis for

relief on appeal if failing to correct it would “seriously affect[] the fairness, integrity, or

public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467

(1997) (internal quotation marks and citations omitted).

       Here, the guilty plea met the necessary legal requirements. The District Court

addressed Tucker personally in open court and confirmed that he understood the rights he

was forfeiting, that he understood the terms of his plea agreement, and that he was

pleading guilty knowingly and voluntarily. Given the District Court‟s thorough colloquy,

and the fact that Tucker has neither sought to withdraw his plea nor suggested grounds



       2
       The elements of his crimes, including the jurisdictional elements, were admitted
by Tucker in the plea colloquy.

                                                6
for finding it involuntary or less than knowing, we see no error and thus no nonfrivolous

basis upon which Tucker may challenge his guilty plea.

              3.     Tucker’s Sentence

       The final potential issue pertains to whether the District Court properly determined

Tucker‟s sentence. We review the District Court‟s sentencing decisions for abuse of

discretion, looking first for procedural error and then examining the sentence for

substantive reasonableness. United States v. Wise, 515 F.3d 207, 217-18 (3d Cir. 2008).

       Here, the record reveals no procedural or substantive problems. The District Court

did not miscalculate the Guidelines range, treat the Guidelines as mandatory, or fail to

consider the 18 U.S.C. § 3553(a) factors. Moreover, the Court gave meaningful

consideration to Tucker‟s mental health issues and decided to deny his request for a

downward variance in light of the seriousness of the offense, all of which is consistent

with § 3553(a). The sentence therefore was procedurally sound.

       Likewise, the sentence is substantively reasonable. Our review must be, “to a

great degree, deferential.” Wise, 515 F.3d at 218. Because the District Court imposed a

sentence within the properly calculated Guidelines range that took into account, inter

alia, Tucker‟s criminal history, his mental condition and the seriousness of his crime,

there was no abuse of discretion. The record, then, presents no nonfrivolous basis upon

which Tucker may appeal his sentence.

III.   Conclusion

       For the forgoing reasons we will grant counsel‟s motion to withdraw and affirm

the District Court‟s judgment.

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