                                                          NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                                  No. 12-1338
                                 ____________

                       UNITED STATES OF AMERICA

                                       v.

                  ALAN D. GARRETT, a/k/a ALLEN GARRETT
               a/k/a ALLAN GARRETT a/k/a TYRONE GARRETT
               a/k/a TYREE GARRETT a/k/a TYRELL GARRETT


                                   Alan D. Garrett,
                                             Appellant
                                 ___________

                 On Appeal from the United States District Court
                           for the District of New Jersey
                     (D.C. Criminal No. 1-11-cr-00242-001)
                  District Judge: Honorable Jerome B. Simandle
                                   ___________

                  Submitted Under Third Circuit L.A.R. 34.1(a)
                             September 28, 2012

     Before: McKEE, Chief Judge, JORDAN AND VANASKIE, Circuit Judges

                           (Filed: December 5, 2012)
                                  ___________

                                  OPINION
                                 ___________


VANASKIE, Circuit Judge.
       Alan Garrett pled guilty to the charge of being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1). His appeal is before us on a brief filed by his

attorney pursuant to Anders v. California, 386 U.S. 738 (1967). Counsel for Garrett

asserts that there are no nonfrivolous issues on appeal. We agree. Accordingly, we will

affirm the District Court‟s judgment and grant counsel‟s motion for leave to withdraw.

                                             I.

       We write primarily for the parties, who are familiar with the facts and procedural

history of this case. Accordingly, we set forth only those facts necessary to our analysis.

       On August 20, 2010, at approximately 10:45 PM, police officers, responding to a

radio call for shots fired, observed Garrett leaning on a fence in front of a residence and

attempting to walk away in a staggered, unsteady manner. The officers ordered Garrett to

stop, but he did not comply. The officers pursued Garrett as he attempted to flee. As

police tackled him to the ground, Garrett removed a loaded handgun from his waistband.

Garrett had been previously convicted of a felony.

       On April 13, 2011, in a single-count indictment, the government accused Garrett

of possessing a firearm as a convicted felon. On September 21, 2011, Garrett entered

into a plea agreement with the government. On January 26, 2012, Garrett was sentenced

to 77 months‟ incarceration, the bottom of the advisory guidelines range.

       This appeal ensued. The District Court had jurisdiction under 18 U.S.C. § 3231,

and we have appellate jurisdiction under 28 U.S.C. § 1291.

                                             II.

                                             A.

                                              2
       Pursuant to Anders, counsel for a defendant may seek to withdraw if, after

reviewing the District Court record, he or she is “persuaded that the appeal presents no

issue of even arguable merit.” See 3d Cir. L.A.R. 109.2(a). Specifically, counsel must

“(1) satisfy the court that counsel has thoroughly examined the record in search of

appealable issues, and (2) . . . explain why the issues are frivolous.” United States v.

Youla, 241 F.3d 296, 300 (3d Cir. 2001) (citations omitted). Although not every

conceivable claim need be raised and rejected, counsel “must meet the „conscientious

examination‟ standard set forth in Anders.” Id. When presented with an Anders brief, we

engage in a two-step analysis to consider: “(1) whether counsel adequately fulfilled

[Third Circuit Local Appellate Rule 109.2(a)'s] requirements; and (2) whether an

independent review of the record presents any nonfrivolous issues.” Id. If we find that

“the Anders brief initially appears adequate on its face,” the second step of the inquiry

will be “confine[d] . . . to those portions of the record identified by . . . [the] Anders

brief.” Id. at 301. If this Court agrees with counsel‟s assessment of the appealable

issues, we “will grant counsel‟s Anders motion and dispose of the appeal without

appointing new counsel.” Id. at 300. When reviewing an Anders motion, we exercise

plenary review. See Simon v. Gov’t of Virgin Islands, 679 F.3d 109, 114 (3d Cir. 2012).

           Garrett‟s counsel identifies one potentially appealable issue: whether Garrett‟s

criminal history category was improperly calculated. In untimely pro se filings, Garrett

has presented some additional arguments in support of his appeal.1


       1
         On April 30, 2012, Garrett caused to be filed a document in support of his
appeal, simply stating that he was adding to his “pro se argument” our non-precedential
                                                3
       We are satisfied that Garrett‟s counsel has conducted an adequate examination of

the record and adequately explained that there are no nonfrivolous issues for appeal. See

Youla, 241 F.3d at 300. Therefore, we conclude that the Anders brief is adequate.

“Where the Anders brief initially appears adequate on its face, the proper course „is for

the appellate court to be guided in reviewing the record by the Anders brief itself,‟” as

well as the contentions asserted in a defendant‟s pro se brief. Id. at 301 (quoting Marvin,

211 F.3d at 553). We will consider first the issue presented in the Anders brief, and then

turn to the questions raised by Garrett himself.

                                             B.

       The District Court found that Garrett‟s Criminal History Category points totaled

nineteen, producing a Criminal History Category of VI. At sentencing, Garrett requested

that counsel object to the calculation of his criminal history points. Counsel did so, but

later withdrew that objection after concluding that the criminal history points were

correctly calculated. The Anders brief questions the inclusion of three of Garrett‟s prior

convictions in his criminal history category and whether five prior convictions should

have been grouped as two separate single sentences. Garrett‟s counsel concludes that the

issues pertaining to the criminal history scoring are frivolous.

opinion in United States v. Ishmail, 169 F. App‟x. 114 (3d Cir. 2006). By letter dated
May 1, 2012, the Clerk of Court directed Garrett to notify the Court in writing within
seven days if he intended this document to serve as his pro se brief. Garrett did not
respond to the Clerk‟s directive. Accordingly, his pro se submission was not treated as a
brief in support of his appeal. On July 6 and 9, 2012, however, Garrett filed documents
labeled as “Argument in Support of Appeal” and “Amended Argument in Support of
Appeal.” On August 20, 2012, Garrett filed a document treated on the record as a Rule
28(j) letter. These pro se submissions will be considered to be Garrett‟s additional
arguments in support of his appeal.
                                              4
                                             1.

       United States Sentencing Guidelines (“U.S.S.G”) § 4A1.2(e) provides:

              (1)Any prior sentence of imprisonment exceeding one year
              and one month that was imposed within fifteen years of the
              defendant‟s commencement of the instant offense is counted
              [in the criminal history category]. Also counted are any prior
              sentences of imprisonment exceeding one year and one
              month, whenever imposed, that resulted in the defendant
              being incarcerated during any part of such fifteen-year period.

              (2) Any other prior sentence that was imposed within ten
              years of the defendant‟s commencement of the instant offense
              is counted.

       Garrett was arrested for possessing a firearm as a convicted felon on August 20,

2010. Three of Garrett‟s prior arrests occurred before August 20, 1995, fifteen years

from the date of the current offense. Specifically, the arrests occurred on April 13, 1993,

June 13, 1994, and February 6, 1995. Garrett, however, was not sentenced on these

charges until February 8, 1996. Furthermore, Garrett was sentenced in excess of the

required one year and one month for each of the three offenses, qualifying them for use

under § 4A2.1(e)(1). Garrett ultimately served 3 years‟ imprisonment for his arrest in

April of 1993, due to a probation violation, and was sentenced to 5 years‟ incarceration

and 18 years‟ incarceration respectively for his arrest in June of 1994 and February of

1995. Therefore, because the sentences were imposed within the 15 year limitation under

§ 4A1.2(e)(1) and exceeded the required one year and one month minimum sentence,

they were properly considered by the court in calculating Garrett‟s Criminal History

Score. See, e.g., United States v. Baltas, 236 F.3d 27, 39 (1st Cir. 2001) (prior sentence

properly counted because defendant in prison within 15 year period); United States v.

                                             5
Love, 134 F.3d 595, 608 (4th Cir. 1998) (prior sentences properly counted because

defendant serving time for prior convictions within 15 years of commission of charged

offense); United States v. Ybarra, 70 F.3d 362, 366 (5th Cir. 1995) (criminal history

correctly included 2 felony convictions for which defendant was released from custody

over 15 years ago because defendant serving sentence on those convictions within 15

years of commission of charged offense). See also United States v. Salmon, 94 F.2d 1106,

1128 (3d Cir. 1991) (despite Washington originally receiving a suspended sentence

which would preclude counting the conviction, he later served a term of imprisonment

due to a probation violation, thus permitting the district court to consider the sentence in

calculating criminal history points).

                                              2.

       U.S.S.G. Section 4A1.2(a)(2) provides:

              If the defendant has multiple prior sentences, determine
              whether those sentences are counted separately or as a single
              sentence. Prior sentences always are counted separately if the
              sentences were imposed for offenses that were separated by
              an intervening arrest (i.e., the defendant is arrested for the
              first offense prior to committing the second offense). If there
              is no intervening arrest, prior sentences are counted separately
              unless (A) the sentences resulted from offenses contained in
              the same charging instrument; or (B) the sentences were
              imposed on the same day. Count any prior sentence covered
              by (A) or (B) as a single sentence.

The Guidelines specifically mandate that offenses separated by an intervening arrest are

to be considered separately when calculating a defendant‟s criminal history score. See

U.S.S.G. § 4A1.2(2) cmt. 2. Here, Garrett was arrested on April 13, 1993, June 13, 1994,

and February 6, 1995, but was sentenced on all three charges on the same day, and the

                                              6
sentences ran concurrently. Similarly, Garrett was arrested on December 26, 2006 and

June 5, 2007, but was sentenced on both charges on the same day, and the sentences ran

concurrently. On every occasion, Garrett was arrested on the prior charge before the

commission of the second offense. The fact that the sentences for the separate offenses

were imposed on the same date and that the sentences ran concurrently is irrelevant.

Therefore, the District Court properly concluded that Garrett‟s convictions counted

separately. Accordingly there was no error in the computation of Garrett‟s Criminal

History Score.

                                                 B.

       In three untimely submissions, treated as Garrett‟s pro se brief, Garrett raises three

issues for appeal. Garrett contends that his sentence under the plea agreement exceeded

the statutory maximum, and that several prior convictions should not have been counted

as felonies.

                                                 1.

       Garrett contends that his sentence exceeds the statutory maximum for the offense

to which he pled guilty. Garrett argues that a defendant sentenced for violation of § 922

shall not be imprisoned for more than five years . In support of his argument, Garrett

cites 18 U.S.C. § 924(a)(1).

       18 U.S.C. § 924 reads in relevant part:

               (a)(1) Except as otherwise provided in this subsection,
               subsection (b), (c), (f), or (p) of this section, or in section 929,
               whoever--
               (A) knowingly makes any false statement or representation
               with respect to the information required by this chapter to be

                                                7
              kept in the records of a person licensed under this chapter or
              in applying for any license or exemption or relief from
              disability under the provisions of this chapter;
              (B) knowingly violates subsection (a)(4), (f), (k), or (q) of
              section 922;
              (C) knowingly imports or brings into the United States or any
              possession thereof any firearm or ammunition in violation of
              section 922(l); or
              (D) willfully violates any other provision of this chapter,
              shall be fined under this title, imprisoned not more than five
              years, or both.
              (2) Whoever knowingly violates subsection (a)(6), (d), (g),
              (h), (i), (j), or (o) of section 922 shall be fined as provided in
              this title, imprisoned not more than 10 years, or both.

18 U.S.C. § 924(a).

       Garrett pled guilty to the charge of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). Section (a)(1) applies to the violation of subsections

(a)(4), (f), (k), and (q) of § 922. Section (a)(2) applies to the violation of subsections

(a)(6), (d), (g), (h), (i), (j), and (o) of § 922. Therefore, the subsection applicable to

Garrett‟s offense is (a)(2), not (a)(1) as Garrett contends. Section (a)(2) permits

imprisonment of up to 10 years for a violation of § 922(g). Garrett was sentenced to six

years and five months‟ imprisonment. Therefore, he was not sentenced in excess of the

statutory maximum.2

                                               2.

       Next, Garrett contends only sentences imposed within ten years of the

commencement of the instant offense are to be considered in calculating the Criminal

       2
        Garrett also cites 18 U.S.C. § 924 (c)(1)(A) in support of his argument. Section
924(a)(1)(A) is only applicable to crimes of violence and drug trafficking offenses.
Garrett was not charged with a crime of violence. Therefore, this section is inapplicable.

                                               8
History Score. Garrett argues that three of his offenses fall outside the ten-year window,

and thus were incorrectly considered by the District Court.

       The current offense was committed on August 20, 2010. Garrett has eight prior

convictions, seven of which were included in calculating his Criminal History Score. On

October 15, 1993, Garrett was convicted of unlawful possession of a weapon (handgun).

He was originally sentenced to 1 year probation, but due to a probation violation on

February 8, 1996, Garrett was resentenced to three years‟ imprisonment. On the same

date, Garrett was sentenced for a second unlawful possession of a weapon (firearm)

charge and criminal attempt to commit murder. Garrett was sentenced to 5 years‟

imprisonment and 18 years‟ imprisonment respectively.      On September 3, 2002, Garrett

was convicted of escape from detention and sentenced to four years‟ imprisonment. On

December 6, 2003, Garrett was convicted of hindering apprehension and sentenced to

two days‟ imprisonment.3 On October 16, 2007, Garrett was convicted of burglary and

sentenced to 3 years‟ imprisonment. On October 26, 2007, Garrett was convicted of

possession of a controlled substance with intent to distribute within 1,000 feet of a school

and sentenced to three years‟ imprisonment. On August 23, 2010, Garret was convicted

of prowling in a public place, and sentenced to 30 days‟ imprisonment.4

       As pointed out above, a sentence imposed within fifteen years of the commission

of the offense under consideration is counted if, inter alia, the sentence exceeded one

       3
         Although this conviction falls within the ten year statutory time period, zero
criminal history points were associated with this offense. Therefore, it had no impact on
Garrett‟s final criminal history score.
       4
         This last conviction was given one criminal history point. The other six
convictions that were counted were assigned three points.
                                             9
year and one month. Garrett was sentenced to prison terms exceeding one year and one

month for three separate offenses more than ten but less than fifteen years ago, and these

sentences were properly considered in calculating his criminal history score. His

convictions for which sentences were imposed within ten years of the commission of the

instant offense also were properly counted. Accordingly, Garrett‟s contention is

frivolous.

                                              3.

       Last, Garrett argues that two of his prior convictions were incorrectly considered

felonies and therefore should not have been considered in the calculation of his Criminal

History Score because they fall outside of the non-felony ten-year window. Specifically,

Garrett contends that neither of his unlawful possession of a weapon charges should have

been considered.

       Garrett has two prior convictions for unlawful possession of a weapon. Garrett

received a sentence of three years‟ imprisonment for the first offense, and five years‟

imprisonment for the second. 5 U.S.S.G. § 4A1.2(e)(1) requires inclusion of offenses

resulting in a sentence of more than one year and one month for which the sentence was

imposed within fifteen years of commission of the instant offense. And U.S.S.G. §

4A1.1(a) assigns three points to each sentence exceeding one year and one month.

Therefore, because both offenses resulted in sentences well in excess of the required one




       5
        The first offense originally resulted in a sentence of one year probation. Garrett
violated that probation and was resentenced to three years‟ imprisonment.
                                            10
year and one month, they were thus properly considered in calculating Garrett‟s Criminal

History Score.

                                         III.

      Counsel adequately fulfilled the requirements of Anders. Our independent review

of the record does not disclose any nonfrivolous grounds for appeal. For the foregoing

reasons, we will affirm the judgment of the District Court and grant defense counsel‟s

motion to withdraw.




                                           11
