                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 14-3696
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                             JOSEPH TAMBONG OSANG,
                                                 Appellant
                                   _____________

                      Appeal from the United States District Court
                                for the District of Delaware
                                 (No. 1-13-cr-00028-001)
                     District Judge: Honorable Richard G. Andrews

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 25, 2015

             Before: CHAGARES, KRAUSE and BARRY, Circuit Judges.

                                   (Filed: July 10, 2015)
                                       ____________

                                        OPINION*
                                      ____________

CHAGARES, Circuit Judge.

       Joseph Osang appeals his sentence of eighteen months of imprisonment for wire

fraud, and his attorney moves to withdraw as counsel pursuant to Anders v. California,



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
386 U.S. 738 (1967). For the following reasons, we will grant the motion to withdraw

and affirm the District Court’s judgment.

                                             I.

       We write solely for the parties and therefore recite only the facts necessary to our

disposition. Osang was involved in a “black money” scheme. In such a scheme, the

perpetrator claims to have possession of currency that is coated in a black paste or

chemical, which can be removed to reveal usable bills. The victim is then convinced to

purchase the chemical for cleaning the bills along with a number of “black” bills, but in

reality receives only black paper cut into the dimensions of U.S. currency. In Osang’s

version of the scheme, he claimed that regular currency was needed as part of the

cleaning process, and attempted to induce his victim to provide $100,000 in exchange for

a percentage of the bills that would be “cleaned.” Osang’s intended victim in this case

was, in reality, a cooperating witness, and Osang was arrested when he showed up to

collect the money and “clean” the bills. He was indicted for wire fraud on March 4, 2013

and pled guilty on April 9, 2014.

       At sentencing, the District Court applied an eight-level enhancement for the loss

amount and a two-level enhancement for obstruction of justice because Osang attempted

to flee to Canada during the pendency of this criminal proceeding. After a three-level

deduction for acceptance of responsibility, Osang’s final offense level was calculated as

fourteen, to which he did not object, and which resulted in an advisory Sentencing

Guidelines range of fifteen to twenty-one months of imprisonment. He was sentenced to

eighteen months of imprisonment and three years of supervised release.

                                             2
       Osang timely appealed his sentence. His attorney has filed a motion to be relieved

and a supporting brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that

there are no non-frivolous issues for appeal. Osang has filed his own informal

supplemental brief.

                                            II.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       When counsel files a motion to withdraw under Anders we follow a two-step

review process. First, we consider whether counsel has adequately fulfilled the

requirements of Local Appellate Rule 109.2(a), which requires filing a brief, compliant

with the requirement set forth in Anders to identify “anything in the record that might

arguably support the appeal.” Anders, 386 U.S. at 744. Second, we consider “whether

an independent review of the record presents any nonfrivolous issues.” United States v.

Youla, 241 F.3d 296, 300 (3d Cir. 2001). If our review discloses any arguable merit to

the appeal, we appoint substitute counsel, order supplemental briefing, and restore the

case to the calendar.

                                            III.

        Defense counsel raises the procedural and substantive reasonableness of Osang’s

sentencing based on the loss amount used and the conviction’s immigration consequences

as arguable bases for appeal. In his informal brief, Osang adds arguments regarding the

District Court’s consideration of other charged conduct, and his attorney’s alleged failure

to object to a sentencing enhancement and to press the issue of Osang’s mental health.

                                             3
       As to the loss amount, it is undisputed that Osang asked the cooperating witness

for $100,000. The Sentencing Guidelines provide that the loss amount is defined as “the

greater of actual loss or intended loss.” U.S.S.G. § 2B1.1 cmt. n.3(A). Intended loss

includes the “pecuniary harm that was intended to result from the offense” even where

that loss would have been “impossible or unlikely to occur,” as in a sting operation.

U.S.S.G. § 2B1.1 cmt. n.3(A)(ii); see also United States v. Yeaman, 194 F.3d 442, 460

(3d Cir. 1999) (“Intended loss refers to the defendant’s subjective expectation, not to the

risk of loss to which he may have exposed his victims.”). Thus, we agree that an appeal

on this basis would be frivolous.

       The next conceivable issue raised by the Anders brief is the length of the sentence

and its effect on his immigration status. He was required to be informed that a plea of

guilty would subject him to the risk of deportation. See Padilla v. Kentucky, 559 U.S.

356, 374 (2010). He was informed of the potential immigration consequences of his plea

by the plea agreement, his attorney, and the District Judge at the plea colloquy. An

appeal on this basis would be frivolous as well.

       To these considerations we add those raised by Osang in his informal brief. Osang

complains of the sentencing judge’s consideration of other conduct that he was charged

with, but not convicted of. He remained, however, in the lowest criminal history

category and the sentencing judge indicated that he was not giving the conduct any

weight in his consideration of the proper sentence. Even assuming that this was in error,

then, it was harmless as it did not affect Osang’s total sentence. See United States v.

Langford, 516 F.3d 205, 215 (3d Cir. 2008) (holding that a sentencing error is harmless if

                                             4
it is “clear that the error did not affect the district court’s selection of the sentence

imposed”).

       Osang also objects to his attorney’s alleged failure to elaborate sufficiently on his

mental health problems and to object to the two-level sentencing enhancement for

obstruction of justice. We do not generally review ineffective assistance of counsel

claims under the Sixth Amendment on direct appeal. See, e.g., United States v. Olfano,

503 F.3d 240, 246 (3d Cir. 2007). Moreover, Osang’s attorney raised the issue of his

mental health at several points during the proceeding, Osang himself discussed it during

the plea colloquy, and the record was sufficient to allow the District Court to consider

Osang’s difficulties as part of his “history and characteristics.” 18 U.S.C. § 3553(a)(1).

       Any objection to the obstruction of justice enhancement would have been futile as

well. The Guideline includes “escaping or attempting to escape from custody before trial

or sentencing; or willfully failing to appear, as ordered, for a judicial proceeding” as

“covered conduct.” U.S.S.G. § 3C1.1 cmt. n.4(E). Osang’s attempt to flee to Canada

falls squarely within the Guideline. See United States v. Abuhouran, 162 F.3d 230, 234

(3d Cir. 1998) (upholding application of enhancement where the defendant on bail cut his

electronic monitoring device and attempted to flee the country).

                                               IV.

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

District Court’s judgment.




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