                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                   No. 10-1334
                                  ____________

                         UNITED STATES OF AMERICA

                                        v.

                                PIERRE CIDONE,
                                    a/k/a Pski

                                   PIERRE CIDONE,
                                          Appellant
                                  ____________

                  On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                            (D.C. No. 3-06-cr-0061-001)
                   District Judge: Honorable A. Richard Caputo
                                   ____________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 October 28, 2011

             Before: FISHER, VANASKIE and ROTH, Circuit Judges.

                            (Filed: November 18, 2011)
                                   ____________

                           OPINION OF THE COURT
                                ____________

FISHER, Circuit Judge.




                                        1
       Pierre Cidone (“Cidone”) appeals the District Court‟s judgment and sentence for

the charge of possession with intent to distribute in excess of 50 grams of cocaine base, in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Pursuant to Anders v. California,

386 U.S. 738 (1967), counsel for Cidone filed a brief explaining that there are no non-

frivolous issues for appeal. Cidone outlined the reasons for his appeal in a subsequently

filed pro se brief. For the reasons discussed below, we will affirm the District Court‟s

judgment and grant defense counsel‟s motion to withdraw.

                                             I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       On May 4, 2005, a confidential informant notified the Scranton Police that Cidone

was traveling to New Jersey to purchase crack cocaine and then returning to Scranton,

Pennsylvania. The informant described in detail the vehicle being used, the passengers in

the vehicle, its destination, and the estimated time of arrival. When the vehicle arrived in

Scranton, the police officers at the scene verified the informant‟s description. After the

police approached the vehicle, they identified themselves and shined flashlights into the

vehicle. The police observed Cidone making furtive movements in the rear passenger

seat. The police then removed the occupants of the vehicle and observed in plain view,

where Cidone had been sitting, a clear plastic bag that appeared to contain crack cocaine.


                                              2
The officers then arrested Cidone and read him his Miranda rights. Cidone denied that

he owned the drugs.

       On February 14, 2006, a federal grand jury returned an indictment against Cidone,

charging him with conspiracy to distribute in excess of 50 grams of cocaine base, in

violation of 21 U.S.C. § 846 (Count 1), possession with intent to distribute in excess of

five grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)

(Count 2), and possession of more than five grams of cocaine base, in violation of 21

U.S.C. § 844 (Count 3). On January 23, 2008, after conducting a hearing, the District

Court denied Cidone‟s motion to suppress the evidence. On June 4, 2008, Cidone pled

guilty to possession with intent to distribute in excess of five grams of cocaine base

(Count 2). The plea agreement was later amended to remove the recommended sentence

term. The District Court accepted Cidone‟s guilty plea after conducting a colloquy and

finding that he knowingly and voluntarily pled guilty. Cidone subsequently filed a

motion to withdraw his guilty plea, which was denied. The District Court sentenced

Cidone to 120 months of imprisonment. Cidone filed a timely appeal.

                                             II.

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

appellate jurisdiction under 28 U.S.C. § 1291. Counsel may file a motion to withdraw

representation under Anders if, after reviewing the district court‟s record, he or she is

“persuaded that the appeal presents no issue of even arguable merit.” Third Circuit


                                              3
L.A.R. 109.2(a). We evaluate a counsel‟s Anders brief twofold: (1) whether counsel

thoroughly examined the record in search of appealable issues and explained why the

issues are frivolous; and (2) “whether an independent review of the record presents any

non-frivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). If we

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

our inquiry is “guided . . . by the Anders brief itself.” Id. at 301 (quotation marks and

citation omitted). Because defense counsel‟s Anders brief appears to be thorough and

adequate on its face here, we now examine the arguments presented in his Anders brief.

                                              III.

                                               A.

         Defense counsel submits that there is no non-frivolous argument that the District

Court lacked jurisdiction over the case. We conduct plenary review over whether the

District Court properly exercised jurisdiction. Reich v. Local 30, 6 F.3d 978, 982 (3d Cir.

1993).

         “The district courts of the United States shall have original jurisdiction, exclusive

of the courts of the States, of all offenses against the laws of the United States.” 18

U.S.C. § 3231. Because Cidone‟s conviction and sentence were for an offense under

federal law, there is no non-frivolous argument that the District Court lacked jurisdiction.

                                               B.




                                                4
       In his pro se brief, Cidone argues that “all Federal drug crimes are

unconstitutional.” In his Anders brief, defense counsel submits that this argument is

frivolous. “We apply a plenary standard of review . . . to questions regarding a statute‟s

constitutionality.” United States v. Randolph, 364 F.3d 118, 121 (3d Cir. 2004) (citing

United States v. Rodia, 194 F.3d 465, 469 (3d Cir. 1999)).

       We have no difficulty holding that federal laws regulating food and drugs under

Title 21 of the U.S. Code, including 21 U.S.C. § 841, under which Cidone was convicted,

are constitutional. Under the Commerce Clause, Congress has the power to regulate the

large interstate market for illegal drugs, just as it has the power to regulate food and drugs

in general. U.S. Const. Art. I, § 8, cl. 3; see, e.g., Reina v. United States, 364 U.S. 507,

511 (1960). Thus, we reject Cidone‟s argument and agree with defense counsel.

                                              C.

       Defense counsel next submits there is no non-frivolous argument that Cidone‟s

guilty plea was invalid because the District Court conducted an inadequate colloquy

under Federal Rule of Criminal Procedure 11(b)(1). Because Cidone failed to timely

object, we review the alleged Rule 11 violation for plain error. United States v. Corso,

549 F.3d 921, 927 (3d Cir. 2008) (citation omitted).

       The District Court conducted a proper plea colloquy under Rule 11. During the

plea hearing, Cidone was placed under oath and asked a series of questions pursuant to

Rule 11 to ensure that he understood his rights and the consequences of pleading guilty.


                                              5
The District Court verified that Cidone had signed the plea agreement, read and

understood the provisions of the agreement, conferred with his attorney about the

agreement, and was freely and voluntarily agreeing to plead guilty. Additionally, the

District Court explained the maximum possible penalties, the mandatory minimum

penalties, and how the advisory guidelines would be taken into consideration. The

District Court‟s colloquy was thorough and proper, and thus, in accord with Rule 11.

                                             D.

       Defense counsel submits there is no arguably meritorious argument that the

District Court erred in denying Cidone‟s motion to withdraw his guilty plea. We review

the District Court‟s denial of a motion to withdraw a guilty plea for abuse of discretion.

United States v. Brown, 250 F.3d 811, 815 (3d Cir. 2001).

       After the court accepts a plea agreement, but before it imposes a sentence, the plea

can only be withdrawn if (1) the court subsequently rejects the agreement under Rule

11(c)(5), or (2) “the defendant can show a fair and just reason for requesting the

withdrawal.” Fed. R. Crim. Pr. 11(d)(2). Cidone bears the substantial burden of showing

a fair and just reason for withdrawal. See United States v. Jones, 336 F.3d 245, 252 (3d

Cir. 2003). The District Court “must consider three factors when evaluating 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.” Id. (citations omitted). “A shift in defense


                                             6
tactics, a change of mind, or the fear of punishment are not adequate reasons to impose

on the government the expense, difficulty, and risk of trying a defendant who has already

acknowledged his guilt by pleading guilty.” Brown, 250 F.3d at 815 (quotation marks

and citation omitted).

       As defense counsel asserts, there is no merit to Cidone‟s claim that the District

Court abused its discretion in denying the motion to withdraw his guilty plea. In

asserting his innocence, Cidone merely argues that the drugs found in the vehicle did not

belong to him. However, “[a]ssertions of innocence must be buttressed by facts in the

record that support a claimed defense.” Id. at 818 (quoting United States v. Salgado-

Ocampo, 159 F.3d 322, 326 (7th Cir. 1998)). Cidone‟s failure to cite to any facts in the

record to support his assertion of innocence leads us to reject his claim.

       In addition to asserting his innocence, Cidone must also “give sufficient reasons to

explain why contradictory positions were taken before the [D]istrict [C]ourt and why

permission should be given to withdraw the guilty plea.” Jones, 336 F.3d at 253 (citation

omitted). Cidone proffers that he pled guilty because he was under a considerable

amount of stress and under the influence of medication. We find his explanations

insufficient to overcome his substantial burden under Jones. See id. at 252. As discussed

above, the District Court‟s colloquy was thorough and proper, and the record indicates

that Cidone‟s plea was knowing and voluntary. Additionally, the Government presented

the testimony of FBI agent Larry Whitehead, who testified that Cidone did not appear to


                                              7
be under any great deal of stress and that he knowingly and voluntarily, without coercion,

signed a statement that he intended to distribute the cocaine base found in the vehicle.1

Because Cidone failed to present a fair and just reason for withdrawing his guilty plea,

the District Court did not abuse its discretion when it denied his motion.

                                             E.

       Defense counsel next contends there is no non-frivolous argument that the District

Court erred in determining Cidone was a career offender under the U.S. Sentencing

Guidelines or in any other aspect of sentencing. We exercise plenary review over

questions of law, including interpretations of the Sentencing Guidelines. See United

States v. Hull, 456 F.3d 133, 137 (3d Cir. 2006). When reviewing the District Court‟s

sentencing decision, we first determine whether the District Court committed a

significant procedural error, and if no significant procedural error is found, we determine

whether the ultimate sentence imposed was substantively reasonable under an abuse of

discretion standard. See United States v. Brown, 595 F.3d 498, 526 (3d Cir. 2010).

       The District Court correctly held that Cidone qualified as a career offender under

the Sentencing Guidelines because (1) he was at least eighteen years old at the time he

committed the crime; (2) the current conviction is for a felony that is a crime of violence


       1
        We need not reach the third factor regarding whether the Government would be
prejudiced because the Government “is not required to show prejudice when a defendant
has shown no sufficient grounds for permitting withdrawal of a plea.” United States v.
Martinez, 785 F.2d 111, 116 (3d Cir. 1986) (citation omitted).


                                             8
or a controlled substance offense; and (3) he has at least two prior felony convictions of

either a crime of violence or a controlled substance offense. See U.S.S.G. § 4B1.1(a).

The first two conditions are not in dispute, and the third condition is also met given

Cidone‟s two prior convictions for drug trafficking and criminal restraint. Because

Cidone conceded in the District Court that his 1997 Pennsylvania conviction for

manufacturing, delivery, or possession with intent to manufacture or deliver a controlled

substance was a qualifying predicate for career offender status, only his 2000 New Jersey

conviction for criminal restraint is at issue here.

       When evaluating prior convictions for career offender purposes, we employ a

categorical approach and “„look only to the fact of conviction and the statutory definition

of the prior offense.‟” United States v. Stinson, 592 F.3d 460, 464 (3d Cir. 2010) (citing

Taylor v. United States, 495 U.S. 575, 602 (1990)). Under this approach, we must

(1) “establish for which specific crime [Cidone] was convicted”; (2) “interpret the

necessary elements of that crime”; and (3) “determine whether those elements necessarily

bring the prior crime within the definitions of [a crime of violence or a controlled

substance offense].” See United States v. Remoi, 404 F.3d 789, 792-93 (3d Cir. 2005)

(citation omitted). Under New Jersey law, Cidone was convicted for “knowingly . . .

[r]estrain[ing] another unlawfully in circumstances exposing the other to risk of serious

bodily injury,” N.J. Stat. Ann. 2C:13-2 (emphasis added), which is punishable by a

maximum of five years‟ imprisonment. N.J. Stat. Ann. 2C:43-6. Under the Sentencing


                                               9
Guidelines, a “crime of violence” includes “any offense under federal or state law,

punishable by imprisonment for a term exceeding one year, that . . . involves conduct that

presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2)

(emphasis added). Accordingly, Cidone‟s third degree criminal restraint conviction fits

squarely within the definition of “crime of violence” under the Sentencing Guidelines and

qualifies as a predicate offense for career offender status.

       Furthermore, there is no non-frivolous argument that Cidone‟s sentence was

procedurally or substantively unreasonable. The District Court took into consideration all

of the relevant factors under 18 U.S.C. § 3553 and contained in the Presentence

Investigation Report. It correctly calculated Cidone‟s offense level and criminal history

category, resulting in a Guidelines range between 262 and 327 months of imprisonment.

The District Court also took into consideration the disparity in the Guidelines between

crimes relating to powder cocaine base and crack cocaine and sentenced Cidone to 120

months‟ imprisonment, well below the Guidelines range. Therefore, Cidone‟s sentence

was procedurally and substantively reasonable, and the District Court did not abuse its

discretion.2




       2
        Cidone also asserts that the District Court erred in denying his motion to
suppress the evidence and that his right to speedy trial was violated. However, Cidone‟s
subsequent guilty plea waived his right to appeal these issues. See Tollett v. Henderson,
411 U.S. 258, 267 (1973). Thus, we need not reach the merits of the claims.


                                             10
                                                IV.

      For the reasons set forth above, we will affirm the judgment of the District Court

and grant defense counsel‟s motion to withdraw.




                                           11
