                                                          NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                   No. 15-2444
                                  _____________

                        UNITED STATES OF AMERICA

                                         v.

                    JAVIER OSWALDO JOVEL-AGUILAR,
                                            Appellant
                             _____________


                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                        (M.D. Pa. No. 4-13-cr-00220-001)
                  District Judge: Honorable Matthew W. Brann

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                               February 29, 2016

         Before: SMITH, HARDIMAN, and SLOVITER, Circuit Judges

                              (Filed: March 2, 2016)
                             _____________________

                                    OPINION
                             _____________________




SMITH, 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.
      Defendant Javier Oswaldo Jovel-Aguilar has filed a notice of appeal from

the judgment entered in this case. His defense counsel submits that there are no

non-frivolous issues to raise on appeal and accordingly seeks 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 we will dismiss Mr. Aguilar’s appeal.1

                                           I.

      In 2013, a grand jury indicted Aguilar on one count of first-degree murder in

violation of 18 U.S.C. § 1111(a) for killing his cellmate at United States

Penitentiary, Lewisburg. On May 27, 2015, Aguilar pled guilty to second-degree

murder under the same statute. Aguilar entered into a negotiated plea pursuant to

Federal Rule of Criminal Procedure 11(c)(1)(C), which allows a defendant and the

Government to “agree that a specific sentence or sentencing range is the

appropriate disposition of the case.” Id. In this case, the parties agreed to a

binding sentencing range of 240 to 360 months. After the District Court sentenced

Aguilar to 360 months’ imprisonment, defense counsel entered a timely notice of

appeal on June 10, 2015, and then filed an Anders brief with the Court.2 After the


1
  We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a). Because defendant did not raise any objections at the District Court, we
review for plain error. See United States v. Goodson, 544 F.3d 529, 539 (3d Cir. 2008)
(citing United States v. Vonn, 535 U.S. 55 (2002)).
2
  The Clerk’s Office then notified Aguilar of his right under 3d Cir. L.A.R. 109.2(a) to
file a pro se brief. Aguilar has not availed himself of that opportunity.
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government responded, the case was referred to a merits panel on September 21,

2015.

                                          II.

        Defense counsel may move to withdraw from representation if, after a

thorough examination of the District Court record, he or she is “persuaded that the

appeal presents no issue of even arguable merit.” 3d Cir. L.A.R. 109.2(a); see also

Anders, 386 U.S. at 744 (“[I]f counsel finds his case to be wholly frivolous, after a

conscientious examination of it, he should so advise the court and request

permission to withdraw.”). When presented with an Anders motion to withdraw,

we must determine: (1) whether counsel has thoroughly examined the record for

appealable issues and explained why any such issues are frivolous; 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). If “the Anders brief initially

appears adequate on its face,” our independent review is “guided . . . by the Anders

brief itself.” Id. at 301 (internal quotation marks omitted).

                                          A.

        Here, after a thorough examination of the record, defense counsel identified

three issues that Aguilar could possibly raise on appeal following a guilty plea.

See United States v. Broce, 488 U.S. 563, 569 (1989). These included (a) the

jurisdiction of the District Court, (b) the validity of Aguilar’s guilty plea, and (c)

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the legality and reasonableness of the sentence imposed. After identifying the

appealable issues, defense counsel also satisfactorily explained—with citations to

the record and applicable legal authority—why an appeal based on those issues

was wholly frivolous. He explained that (a) there is no dispute with regard to the

District Court’s jurisdiction; (b) the plea colloquy fully complied with Rule 11 of

the Federal Rules of Criminal Procedure; and (c) the sentence was both legal and

reasonable.

      Because defense counsel fulfilled 3d Cir. L.A.R. 109.2(a)’s requirements,

we accept his Anders brief as adequate on this basis.

                                         B.

      Having satisfied the first prong of Anders, our next inquiry requires an

“independent review” of the record to determine whether Aguilar’s appeal presents

any non-frivolous issues.    Youla, 241 F.3d at 300.     However, where defense

counsel’s Anders brief appears adequate on its face, we scrutinize only the issues

and portions of the record identified by the Anders brief itself. Id. at 301. “An

appeal on a matter of law is frivolous where [none] of the legal points [are]

arguable on their merits.” Id. (alterations in original) (internal quotation marks

omitted).

      Following the guidance of defense counsel’s Anders brief, we consider the

three issues that could be raised on appeal from a plea bargain. See Broce, 488

                                         4
U.S. at 569. First, we see no basis for disputing the District Court’s jurisdiction in

this case. Aguilar was indicted and properly charged with violating 18 U.S.C.

§ 1111(a). Thus, the District Court had jurisdiction pursuant to 18 U.S.C. § 3231.

      Second, we conclude that Aguilar’s guilty plea was entered knowingly and

voluntarily. During the change of plea hearing, the District Court fully addressed

with Aguilar each issue set forth in Rule 11(b) in compliance with Boykin v.

Alabama, 395 U.S. 238 (1969). Thus, we are satisfied the District Court fully

ensured that Aguilar knew what he was pleading guilty to and chose to do so

voluntarily.

      Third, we conclude that the District Court entered a sentence that was

reasonable and in conformity with the law. The 360-month sentence was within

both the applicable sentencing guidelines range and was consistent with the Rule

11(c)(1)(C) binding agreement’s range of 240 to 360 months.             As we have

recognized,

      Rule [11(c)(1)(C)] disposes of the case, requiring us to hold that a
      sentencing court has the authority to accept a plea agreement
      stipulating to a sentencing factor or a provision of the sentencing
      guidelines that otherwise would not apply, or specifying a sentence
      that falls outside the applicable guidelines range. Once the District
      Court has accepted such an agreement, it is binding.

United States v. Bernard, 373 F.3d 339, 343-44 (3d Cir. 2004). See also Freeman

v. United States, 131 S. Ct. 2685, 2692 (2011) (“Rule 11(c)(1)(C) makes the

parties’ recommended sentence binding on the court once the court accepts the
                                          5
plea agreement.” (internal quotation marks omitted)).       The District Court also

properly applied the three-step Gunter framework at sentencing. See United States

v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). Accordingly, any challenge to the

reasonableness or legality of the sentence would be frivolous.

                                         III.

      In sum, we agree with defense counsel’s assessment of Aguilar’s appeal.

Our own independent review of the record fails to reveal any non-frivolous issues

for appeal. Accordingly, we will grant defense counsel’s motion to withdraw and

affirm the judgment of the District Court entered on May 27, 2015. We certify that

the issues presented in the appeal lack legal merit and thus do not require the filing

of a petition for writ of certiorari with the Supreme Court pursuant to 3d Cir.

L.A.R. 109.2(b).




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