                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 16-2401
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                            DANIEL PACHECO-MORALES,
                                      Appellant
                                 ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                      (D.C. Crim. No. 1-12-cr-00310-007)
                     District Judge: Honorable Yvette Kane
                                ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  January 19, 2017
                                  ______________

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

                              (Opinion Filed: July 14, 2017)
                                    ______________

                                       OPINION **
                                     ______________




       *
       Honorable D. Michael Fisher, United States Circuit Judge for the Third Circuit,
assumed senior status on February 1, 2017.
       **
         This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.

           Daniel Pacheco-Morales (“Morales”) appeals the District Court’s order denying

his motion to withdraw his guilty plea, and his judgment of conviction. His counsel filed

a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that no

nonfrivolous issues exist for appeal and seeking to withdraw as counsel. For the reasons

set forth below, we will grant counsel’s motion to withdraw and affirm the order of the

District Court denying Morales’s motion to withdraw his guilty plea, as well as the

judgment of conviction.

                                       I. Background

       On April 17, 2013, Morales was indicted on one count of conspiracy to distribute

heroin, cocaine, and 280 grams of cocaine base, and a second count of possession with

intent to distribute and distribution of the same drugs. On the morning of his scheduled

trial, Morales pled guilty, with the understanding that the government would eliminate

the allegation of the specified 280 grams of cocaine, which would have enhanced

Morales’s sentence.

       Accordingly, the District Court conducted a change of plea proceeding, during

which Morales waived his right to a jury trial, and acknowledged that he understood the

charges and alleged facts against him. 1 Satisfied that Morales was competent and

understood the consequences of his decision to plead guilty, the District Court accepted

his plea.


       1
       Because Morales is bilingual, a court interpreter was provided to ensure that
Morales was able to understand the court’s proceedings.
                                              2
       Nine days later, Morales filed a pro se motion to withdraw his guilty plea,

requesting new counsel. In his motion, Morales argued that he “was misinformed [by

counsel] to sign a paper which unknowingly waived [his] rights.” (App. 38.) In a single

sentence, Morales stated that he “preserves his innocence.” Id. He also filed a “Notice of

Ineffective Counsel” alleging that he: “unwillingly entered a guilty plea;” was unaware of

“any thing regarding the consequences of such a guilty plea;” was not “told by appointed

counsel that [he] would be waiving important rights by signing . . . [the] guilty plea, or

[that he] was in fact pleading guilty.” (App. 44.) Further, he asserted in the motion that

he “speak[s] very little English . . . and the translator . . . did not translate anything that

had to do with the documents that [he] signed.” (App. 44.) New counsel was appointed,

and a motion to withdraw the guilty plea, restating Morales’s prior claim that his plea was

unknowing, was submitted.

       The District Court denied the motion and Morales was sentenced. The

Presentence Report indicated that Morales had four prior convictions for heroin

trafficking, which the sentencing judge determined “warrant[ed] [a] spike in the

guidelines for the career offender status.” (App. 68.)

                                        II. Jurisdiction

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has

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

                                  III. Standard of Review

       “In [Anders v. California], the Supreme Court explained the general duties of a

lawyer representing an indigent criminal defendant on appeal when the lawyer seeks

                                                3
leave to withdraw from continued representation on the grounds that there are no

nonfrivolous issues to appeal.” United States v. Marvin, 211 F.3d 778, 779 (3d Cir.

2000). The attorney must always “support his client’s appeal to the best of his ability.”

Anders, 386 U.S. at 744. If, however, “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.” Id.

       To withdraw, counsel must “satisfy the court that he or she has thoroughly scoured

the record in search of appealable issues,” and “explain why the issues are frivolous.”

Marvin, 211 F.3d at 780. Hence, this Court’s inquiry when considering a lawyer’s

Anders brief is two-fold; we must determine: “(1) whether counsel adequately fulfilled

[Third Circuit Local Appellate Rule 109.2’s] requirements; 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). In accordance with Third Circuit Local

Appellate Rule 109.2, if an appeal is judged to be wholly frivolous, this Court must

“grant trial counsel’s Anders motion, and dispose of the appeal without appointing new

counsel.” Id. (quoting 3d Cir. L.A.R. 109.2(a)).

                                        IV. Analysis

       Counsel’s brief identifies two potentially appealable issues: whether the District

Court improperly denied Morales’s motion to withdraw his guilty plea and whether the

District Court properly calculated Morales’s sentencing guidelines range. Morales filed a

pro se brief contesting his classification as a career offender, as well as claiming

ineffective assistance of counsel.

                                              4
       Because, as discussed below, none of these issues is nonfrivolous, the motion to

withdraw will be granted.

       Morales argues that the District Court erred by denying his motion to withdraw his

guilty plea. Pursuant to Fed. R. Crim. P. 11(d)(2)(B), a defendant may withdraw a guilty

plea, before sentencing, “if . . . the defendant can show a fair and just reason for

requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). A district court considers

three factors in addressing a motion to withdraw a guilty plea: “(1) whether the defendant

asserts his innocence; (2) the strength of the defendant’s reasons for withdrawing the

plea; and (3) whether the government would be prejudiced by the withdrawal.” United

States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003) (citing United States v. Brown, 250 F.3d

811, 815 (3d Cir. 2001). We review a district court’s decision denying a motion to

withdraw a guilty plea for abuse of discretion. Id.

       First, Morales failed to support his assertion of innocence. A defendant who

moves a court to withdraw a guilty plea must make a credible showing of innocence that

is supported by a factual record. Consequently, “[b]ald assertions of innocence,” without

more, will not do. Id. at 252. Here, Morales simply stated that he “preserves his

innocence.” Beyond this statement, Morales has not offered any facts or further

explanation to support an assertion of innocence. Thus, Morales has not meaningfully

asserted his innocence.

       Second, we are not persuaded by the strength of Morales’s reason for withdrawing

his plea. Morales argues that he should be allowed to withdraw his guilty plea because

counsel “never [told him] that [he] was entering a guilty plea,” and that counsel

                                              5
“misinformed [him] to sign a paper which unknowingly waived [his] rights.” (App. 44,

49.)

       However, a review of the plea colloquy reflects that Morales was properly made

aware that he was entering a guilty plea, and waiving his right to a jury trial. Morales

was informed that the jury was ready to be seated, and that the trial would proceed as

planned if he so desired. Morales responded that he understood and desired to enter a

plea instead. The District Court then recited the charges and alleged facts against him,

and Morales testified under oath that he understood them and had no contentions.

Morales also testified that his counsel at the time had gone over the information with him.

Any alleged error by counsel was corrected by the Rule 11 colloquy; thus, we find that

the District Court did not abuse its discretion by denying Morales’s motion to withdraw

his plea. 2 Therefore, this argument presents no nonfrivolous issue for appeal.

       Morales also argues that the District Court improperly classified him as a career

offender. Specifically, Morales claims that the prior convictions considered by the

District Court were too old; that the Pennsylvania controlled substance statute is

overbroad, and therefore not divisible; that even if the statute is deemed divisible, the

District Court did not have the proper Shepard 3 documents to determine the application


       2
         Because Morales failed to provide factual support for his innocence or provide a
justifiable reason for withdrawing his plea, the Government need not establish prejudice.
Jones, 336 F.3d at 255 (“[T]he Government need not show such prejudice when a
defendant has failed to demonstrate that the other factors support a withdrawal of the
plea.”).
       3
       In Shepard v. United States, the Supreme Court prohibited sentencing courts
from consulting police reports or complaints in applying the Armed Career Criminal Act.
                                              6
of the career offender enhancement; and that counsel was “constitutionally ineffective”

for failing to properly challenge the court’s career offender classification. (Pro Se Br. 6.)

       A defendant is considered a career offender if:

       (1) the defendant was at least eighteen years old at the time the defendant
       committed the instant offense of conviction; (2) the instant offense of
       conviction is a felony that is either a crime of violence or a controlled
       substance offense; and (3) the defendant has at least two prior felony
       convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1. 4

       The District Court’s consideration of the prior convictions was proper. First,

Morales’s prior convictions were not too old. Included in the Presentence Report are four

of Morales’s prior state convictions, which occurred in September 1996, December 1996,

February 1998, and December 2001. All the convictions were for violating

Pennsylvania’s drug trafficking statute, 35 PA. CON. STAT. §780-113(a)(30). As noted

above, the defendant must have at least two prior felony convictions of a crime of

violence or a controlled substance offense. A “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” to be considered in determining whether the



544 U.S. 13, 21 (2005). Rather, the Court held that courts are limited to considering “the
terms of the charging document, the terms of a plea agreement or transcript of colloquy
between judge and defendant in which the factual basis for the plea was confirmed by the
defendant, or to some comparable judicial record of this information.” Id. at 26.
       4
        Morales, born in 1972, was forty-one years old at the time of his indictment and
he was sentenced for violating 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1), which are
controlled substance offenses. Accordingly, he does not contest the first two factors.


                                              7
defendant is a career offender. U.S.S.G. § 4A1.2(e)(1). Morales’s sentence for the

February 1998 and December 2001 convictions exceeded one year and one month, and

fell within the fifteen year time frame requirement, making them appropriate for

consideration by the District Court. The only other question is whether the convictions

were for controlled substance offenses.

       Morales next argues that 35 PA. CON. STAT. §780-113(a)(30) is overbroad and

therefore not divisible under the standards established in Descamps v. United States, 133

S. Ct. 2276, 2281 (2013). We have already considered and rejected this argument,

concluding that the relevant statute is divisible, and is therefore a controlled substance

offense, because it “includes several alternative elements.” United States v. Abbott, 748

F.3d 154, 159-160 (3d Cir. 2014) (“Pennsylvania’s possession with intent to distribute

statute, 35 Pa. Stat. Ann.§ 780–113(a)(30), is divisible.”). Thus, this issue is not

nonfrivolous.

       Morales also argues that the District Court’s “reliance on mere police reports” in

its modified categorical approach analysis runs afoul of the standards set forth in

Shepard. (Pro Se Br. 6). Although Morales failed to raise this objection below, a court

of appeals reviews a forfeited claim not raised below for plain error. Gov’t of Virgin

Islands v. Vanterpool, 767 F.3d 157, 162 (3d Cir. 2014). We find that there was no plain

error. First, Morales has not provided any support for his claim that the District Court

relied on police reports, or any other documents for that matter. Further, the government

has presented proper documents that were available had Morales raised this issue in the

District Court. Accordingly, this issue is not nonfrivolous.

                                              8
       Finally, Morales asserts that counsel was ineffective for failing to challenge the

District Court’s conclusion that he was a career offender. Although it is the practice of

this Court to defer a claim of ineffective assistance of counsel to a collateral proceeding,

it can be addressed “on direct appeal when the record is sufficient to allow determination

of the issue.” United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003). The record

here is insufficient to allow a ruling on Morales’s claim. There was no hearing or ruling

below on the issue that would allow the Court to properly review the issue on direct

appeal. Morales may, however, raise his claim of ineffective assistance of counsel on

collateral review.

       Therefore, because Morales has identified no nonfrivolous issues, counsel’s

motion to withdraw will be granted. Pursuant to Third Circuit Local Appellate Rule

109.2(b), counsel is relieved of the obligation to file a petition for a writ of certiorari in

the Supreme Court. 5




       5
         Judge Hardiman would have found counsel’s Anders brief insufficient because,
at the time the brief was filed, there was a colorable (if unpersuasive) argument that our
holding in United States v. Abbott, 748 F.3d 154, 157–59 (3d Cir. 2014), was altered by
the Supreme Court’s analysis in United States v. Mathis, 136 S. Ct. 2243, 2251–54
(2016). While counsel did not identify this issue in his Anders brief, any such concerns
are immaterial to our ultimate disposition: two months after counsel moved to withdraw,
we confirmed that Abbott’s holding, as it relates to § 780–113(a)(30), survived Mathis.
See Singh v. Att’y Gen., 839 F.3d 273, 282-84 (3d Cir. 2016).
                                               9
