                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 10-3647
                                    ____________

                            UNITED STATES OF AMERICA

                                           v.

                                  RADCLIFFE BENT,

                                                 Appellant
                                    ____________

                   On Appeal from the United States District Court
                              for the District of New Jersey
                                 (D.C. No. 08-cr-00794)
                   District Judge: Honorable Dennis M. Cavanaugh
                                      ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 20, 2011

       Before: FISHER, HARDIMAN and GREENAWAY, JR., Circuit Judges.

                              (Filed: September 21, 2011)
                                     ____________

                              OPINION OF THE COURT
                                   ____________

HARDIMAN, Circuit Judge.

      Radcliffe Bent appeals his judgment of sentence after pleading guilty to conspiracy

to commit mail and wire fraud, conspiracy to commit money laundering, and tax evasion.

Following his counsel’s motion to withdraw pursuant to Anders v. California, 386 U.S.
738 (1967), Bent filed a pro se brief, arguing: (1) his guilty plea was not knowing and

voluntary; and (2) the District Court erred in adopting the loss calculation in his

Presentence Investigation Report (PSR). For the reasons that follow, we will grant

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

                                              I

       Because we write for the parties, we recite only the facts and procedural history

necessary for our decision.

       From 2001 to 2007, Bent and several coconspirators defrauded approximately

twenty-nine investors. Their scheme consisted of inducing these investors to purchase

shares of stock and promissory notes in corporations they controlled by promising

exorbitant returns. Bent and his coconspirators then diverted the investors’ funds—

approximately $13.6 million in total—for personal gain.

       In May 2009, Bent pleaded guilty to one count of Conspiracy to Commit Mail and

Wire Fraud, contrary to 18 U.S.C. §§ 1341 and 1343, and in violation of 18 U.S.C. § 1349

(Count One), one count of Conspiracy to Commit Money Laundering, contrary to 18

U.S.C. § 1957(a) and in violation of 18 U.S.C. § 1956(h) (Count Five), and one count of

Tax Evasion, in violation of 26 U.S.C. § 7201 (Count Nine). The Probation Office

prepared a PSR, which calculated Bent’s total offense level to be 36 and his criminal

history category to be II, yielding a Guidelines range of 210 to 262 months imprisonment.

Bent and the Government objected to two upward adjustments applied in the PSR and

                                              2
the District Court sustained both objections, reducing his Guidelines range to 108 to 135

months imprisonment. The District Court imposed a sentence of 110 months

imprisonment on Count One, 100 months imprisonment on Count Five and 60 months

imprisonment on Count Nine, all of which were to be served concurrently. The District

Court also ordered Bent to pay restitution in the amount of $7,399,396.57.

       Bent filed a timely notice of appeal. His counsel now seeks to withdraw under

Anders, asserting there are no nonfrivolous issues for appeal. The Government has filed a

brief supporting counsel’s Anders motion and Bent has filed a pro se brief in opposition

to his counsel’s motion. 1

                                            II

       When counsel seeks to withdraw pursuant to Anders, we must: (1) determine

whether counsel has adequately fulfilled the requirements of Third Circuit Local

Appellate Rule 109.2 by thoroughly searching the record for appealable issues and

explaining why those issues are frivolous; and (2) conduct an independent review of the

record to see if there are any nonfrivolous issues for appeal. United States v. Coleman,

575 F.3d 316, 319 (3d Cir. 2009).




       1
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291.

                                             3
                                             A

       To satisfy the first prong of our inquiry, counsel must examine the record,

conclude that there are no nonfrivolous issues for review, and request permission to

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

accompany a motion to withdraw with a “brief referring to anything in the record that

might arguably support the appeal.” Anders, 386 U.S. at 744. Counsel need not raise and

reject every possible claim, but must, at a minimum, meet the “conscientious

examination” standard set forth in Anders. Youla, 241 F.3d at 300.

       In his Anders brief, Bent’s counsel identifies three potential issues for appeal and

explains why each is frivolous. Counsel maintains that: (1) the District Court had

jurisdiction to sentence Bent under 18 U.S.C. § 3231; (2) Bent’s guilty plea was knowing

and voluntary and complied with the mandates of Rule 11 of the Federal Rules of

Criminal Procedure; and (3) the sentence imposed by the District Court was procedurally

and substantively reasonable. Counsel’s brief satisfies prong one of our inquiry by

evidencing an adequate examination of the record by counsel and explaining his

conclusion that there are no nonfrivolous issues for appeal.

                                             B

       “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 any issues raised in a defendant’s pro se brief. Youla, 241 F.3d at 301 (internal

                                              4
quotation omitted).

       In his pro se brief, Bent argues: (1) his plea was not knowing and voluntary

because he was under the influence of drugs at the time of the Rule 11 colloquy; and (2)

the District Court erroneously calculated his Guidelines range by overstating the actual

loss attributable to him. We find each of these arguments to be without merit.

                                               1

       First, Bent argues that his plea was not knowing and voluntary because he was

under the influence of various bipolar medications when the District Court conducted its

plea colloquy. Bent asserts that his attorney knew that Bent was undergoing ongoing

treatment for bipolar disorder and that his plea proceedings had been continued on two

prior occasions due to the impact of his medication. Bent further asserts that the District

Court was made aware, by a pretrial report, that he was being treated with psychiatric

medications and that the Court should have conducted an independent inquiry to

determine whether this rendered his plea involuntary.

       Because Bent did not object to the District Court’s decision to accept his plea, we

review the Court’s decision for plain error. Under the plain error standard, Bent bears the

burden of showing that there is “‘(1) [an] error, (2) that is plain, and (3) that affect[s]

substantial rights.’” United States v. Vazquez, 271 F.3d 93, 99 (3d Cir. 2001) (quoting

Johnson v. United States, 520 U.S. 461, 467 (1997)). “If all three conditions are met,

[we] may then exercise [our] discretion to notice a forfeited error, but only if (4) the error

                                               5
seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id.

(quoting Johnson, 520 U.S. at 467).

       Our review of the record reveals Bent’s argument to be meritless. During its plea

colloquy, the District Court specifically asked Bent whether he was “under the influence

of either alcohol or drugs,” to which he responded: “I am not.” The District Court

proceeded to ask Bent a series of questions about his decision to plead guilty, which

revealed that he was lucid and actively engaged in the plea proceeding. Prior to finding

Bent competent to enter a plea, the District Court asked his counsel whether he was

“satisfied that th[e] Plea [was] being entered voluntarily and [was] entered by the

Defendant with full knowledge of all of his rights and responsibilities,” to which Counsel

responded: “I am.” Cf. United States v. Jones, 336 F.3d 245, 256 (3d Cir. 2003)

(explaining that an attorney’s affirmative representation about her client’s competency

may be considered by a district court). 2 Based on the foregoing, we are satisfied that

Bent’s plea was knowing and voluntary.

                                               2

       Second, Bent argues that the District Court erred in adopting the PSR’s loss


       2
          To the extent Bent is arguing that his trial counsel was ineffective for failing to
inform the District Court that Bent had taken medication prior to the plea proceeding, we
decline to review this issue on direct appeal. See United States v. Thornton, 327 F.3d
268, 271 (3d Cir. 2003) (“It has long been the practice of this court to defer the issue of
ineffectiveness of trial counsel to a collateral attack.” (citing United States v. Haywood,
155 F.3d 674, 678 (3d Cir. 1998))).

                                               6
calculation of $7,399,397. He claims that only $1,691,198 of the total loss was

attributable to him because he was not involved in every transaction that comprised the

conspiracy. If Bent is correct regarding the loss calculation, the District Court overstated

his total offense level in calculating his Guidelines range.

       Because Bent did not object to the District Court’s loss calculation at sentencing,

we review that determination for plain error. Vazquez, 271 F.3d at 99. The gravamen of

Bent’s objection to the District Court’s loss calculation appears to be that he was not

personally responsible for some of the losses attributed to him. This argument fails to

recognize the fundamental point that because Bent was part of a conspiracy, he is

responsible not only for the losses caused by his personal conduct, but also for the losses

caused by “all reasonably foreseeable acts and omissions of others in furtherance of the

jointly undertaken criminal activity.” USSG § 1B1.3(a)(B). Moreover, the Guidelines

specifically provide that the District Court’s loss calculation shall include any “pecuniary

harm that the defendant knew or, under the circumstances, reasonably should have

known, was a potential result of the offense.” USSG § 2B1.1 app. n.(3)(A)(iv).

Therefore, the District Court did not plainly err in including losses not directly

attributable to Bent in its calculation of loss.

                                                   3

       Pursuant to the second prong of Anders, we have conducted an independent review

of the record and find that there are no appealable issues of merit.

                                                   7
                                           III

      For the foregoing reasons, we will affirm the judgment of the District Court and, in

a separate order, grant counsel’s motion to withdraw pursuant to Anders.




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