                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 13-2414
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                                 DANIEL P. SCHULTZ,
                                            Appellant
                                   ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                        (D.C. Crim. No. 13-po-000006-001)
                  District Judge: Honorable Malachy E. Mannion
                                  ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 16, 2014
                                    ____________

                Before: RENDELL, ROTH and BARRY, Circuit Judges

                           (Opinion Filed: February 5, 2014 )
                                    ____________

                                       OPINION
                                     ____________

BARRY, Circuit Judge

      Daniel P. Schultz appeals his sentence of two months’ imprisonment. His counsel

filed a motion to withdraw and supporting brief pursuant to Anders v. California, 386

U.S. 738 (1967), asserting that there are no non-frivolous issues for appeal. We will
affirm the judgment of the District Court and grant counsel’s motion to withdraw.

                                             I.

       In the early hours of January 31, 2013, park rangers patrolling the Delaware Water

Gap National Recreation Area found Schultz asleep in the driver’s seat of a car parked

along the McDade Trail, which is closed to motorized vehicles, with the keys in the

ignition and the engine running. Upon further inspection of Schultz’s car, the rangers

observed marijuana in the center console and detected the smell of alcohol. They

administered an on-site breathalyzer test, which revealed that Schultz’s blood alcohol

content (“BAC”) was 0.12%. The rangers took him into custody and brought him to a

nearby ranger station, where he refused to undergo further sobriety testing. The rangers

then prepared violation notices charging him with four regulatory offenses: (1) operating

a vehicle on national parkland with a BAC above 0.08%, in violation of 36 C.F.R.

§ 4.23(a)(2); (2) refusal to submit to a BAC test, in violation of 36 C.F.R. § 4.23(c)(2);

(3) possession of a controlled substance, in violation of 36 C.F.R. § 2.35(b)(2); and

(4) operating a vehicle off a park road, in violation of 36 C.F.R. § 4.10(a).

       Schultz was arraigned the same day. At the arraignment, counsel informed the

District Court that Schultz had agreed to plead guilty to the operating-under-the-influence

offense and, in exchange, the government had agreed to move for dismissal of the three

remaining charges. The Court, having already advised Schultz that each of the charged

offenses carried a maximum sentence of six months’ incarceration, had counsel for the

government recite the factual basis for the operating-under-the-influence charge. The

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Court then engaged Schultz in a short colloquy during which Schultz confirmed that the

government’s version of events was accurate, that he had driven a vehicle while under the

influence of alcohol, and that he was guilty of the offense charged.1 The Court accepted

his plea of guilty, and ordered that a presentence report be prepared. Schultz was

released under supervision.

         The District Court held a sentencing hearing on April 25, 2013. The Court began

by observing that, because of the nature of Schultz’s regulatory violation, it was

necessary to consider the sentencing factors set forth in 18 U.S.C. § 3553(a) but that the

1
    The entirety of the colloquy proceeded as follows:

                THE COURT: Mr. Schultz, have you listened carefully, and
                do you substantially agree with that information [provided by
                the government]?

                MR. SCHULTZ: Yes, sir.

                THE COURT: So let me ask you more particularly, were you
                driving that vehicle that was mentioned that day under the
                influence of alcohol?

                MR. SCHULTZ: Yes, sir.

                THE COURT: And you understand the blood alcohol level
                that they had determined by the breathalyzer was above the
                legal limit of .08, is that right?

                MR. SCHULTZ: Yes, sir.

                THE COURT: So let me ask you, . . . how do you plead to
                driving with a blood alcohol level above .08?

                MR. SCHULTZ: Guilty.

(App. at 23.)
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Sentencing Guidelines were inapplicable to his case. Counsel then presented argument

regarding Schultz’s personal characteristics and history, ranging from his prior criminal

convictions and long history of substance abuse to his military service and ongoing

familial obligations to his two-year-old daughter, as well as the circumstances

surrounding his operation of the vehicle while intoxicated. Schultz apologized for his

conduct and asked not to be imprisoned and taken away from his young daughter.

       Ultimately, the District Court sentenced Schultz to two months in prison, a term of

sentence four months below the statutory maximum. In arriving at this sentence, the

Court stated that it had considered the § 3553(a) sentencing factors and the presentation

by Schultz’s counsel. In addition, it explicitly relied on Schultz’s lengthy criminal

record, which involved 10 convictions for various crimes, including serious offenses such

as attempted burglary and assault; his four-decades-long history of marijuana use; the fact

that he tested positive for marijuana shortly after his initial arrest and release in this case,

(although subsequent presentencing drug tests were negative and he had otherwise

complied with the conditions of his supervision); and the anger issues noted by the

Probation Office and displayed during the sentencing hearing when he made “pretty

vehement” gestures toward his girlfriend because the couple’s daughter was making

noise in the courtroom. (App. at 51.) This appeal followed.

                                               II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have

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

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       Under Anders v. California, if appellate 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. That request must, however, be accompanied by a brief

referring to anything in the record that might arguably support the appeal.” 386 U.S. at

744. “The Court’s inquiry when counsel submits an Anders brief is thus twofold:

(1) whether counsel adequately fulfilled the rule’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). With respect to the first requirement, counsel

submitting an Anders brief 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.” Id.; see also United States v. Marvin, 211 F.3d 778, 780-81 (3d Cir. 2000).

Counsel is not obligated to “raise and reject every possible claim,” but his or her brief

must meet the “conscientious examination” standard. Youla, 241 F.3d at 300. When

performing the second step of our inquiry, “we confine our scrutiny to those portions of

the record identified by an adequate Anders brief.”2 Id. at 301.

       Counsel for Schultz has engaged in the thorough and conscientious review of the

record required by Anders and has submitted an adequate brief in support of his motion to

withdraw. From the necessarily small record of the limited proceedings before the

District Court, counsel has identified three potential issues for appeal: (1) whether there


       2
        Schultz did not file a pro se brief in response to his attorney’s motion to
withdraw under Anders, which he would have been permitted to do. 3d Cir. L.A.R.
109.2(a).
                                               5
was a sound legal and factual foundation for the Court to punish Schultz’s conduct;

(2) whether Schultz’s guilty plea was knowing and voluntary; and (3) the reasonableness

of Schultz’s sentence. Counsel summarized the legal authority applicable to each claim,

comprehensively addressed the relevant record evidence, and found each claim to lack

arguable merit.

       Based on our independent review of the record we reach the same conclusion.

First, there is no dispute that Schultz’s operation of a vehicle while under the influence of

alcohol occurred in a national recreation area, which violated 36 C.F.R. § 4.23(a)(2). The

Secretary of the Interior was authorized to promulgate that regulation under 16 U.S.C.

§ 3, and the District Court had jurisdiction over violations of the regulation pursuant to 18

U.S.C. § 3231. Accordingly, there can be no meritorious challenge to the Court’s

jurisdiction, the lawfulness of the regulation, or application of the regulation to Schultz’s

operation of a vehicle.

       Second, we agree that any challenge to the voluntariness of Schultz’s plea would

be frivolous. In its plea colloquy with Schultz, the District Court confirmed the facts

underlying the charged offense. It failed, however, to provide some of the customary

admonitions and warnings to ensure that a guilty plea is knowing and voluntary. These

include a warning that, by virtue of a guilty plea, the defendant waives the privilege

against compulsory self-incrimination, the right to trial, and the right to confront one’s

accusers. See Fed. R. Crim. P. 11; Boykin v. Alabama, 395 U.S. 238, 242-44 (1969).

Normally, before it accepts a guilty plea, a district court must make certain that the

                                              6
defendant understands his rights and the consequences of pleading guilty and still desires,

of his own volition, to so plead. United States v. Schweitzer, 454 F.3d 197, 202-03 (3d

Cir. 2006).

       Schultz did not object to the sufficiency of the plea colloquy before the District

Court and, at no point, has he sought to withdraw his guilty plea. Any challenge to his

conviction based on the voluntariness of his plea is, therefore, subject to plain error

review. United States v. Vonn, 535 U.S. 55, 58-59 (2002); United States v. Corso, 549

F.3d 921, 928-29 (3d Cir. 2008). To succeed under this standard, Schultz must

demonstrate, among other things, that, but for the Court’s error, there is a “reasonable

probability that . . . he would not have entered the plea.” United States v. Dominguez

Benitez, 542 U.S. 74, 83 (2004); Corso, 549 F.3d at 929. There is nothing in the record,

and we have been presented with no extra-record evidence or even argument, suggesting

that Schultz would have declined to plead guilty had a more extensive colloquy been

conducted.

       Finally, the District Court did not commit error in fashioning its sentence. We

review a sentence first for procedural and then substantive reasonableness. United States

v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). A substantively reasonable

sentence must be based on a “rational and meaningful consideration of the factors

enumerated in 18 U.S.C. § 3553(a)” given the totality of the circumstances. United

States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc). When assessing the

substantive reasonableness of a sentence, we apply the deferential abuse of discretion

                                              7
standard of review and will affirm “unless no reasonable sentencing court would have

imposed the same sentence on that particular defendant for the reasons the district court

provided.” Tomko, 562 F.3d at 567-68.

       Here, the District Court heard argument from counsel and a statement from

Schultz, both of which bore on Schultz’s characteristics and history and the

circumstances of his offense, relevant considerations under § 3553(a). The Court

thoroughly reviewed the facts that it found particularly salient, including Schultz’s long

criminal record and history of drug abuse, his mixed success under pre-trial supervision,

and his apparent anger issues, settling on a sentence far below the statutory maximum.

That sentence was well within the bounds of reason, and any substantive attack on it

would lack arguable merit.

                                            III.

       For the foregoing reasons, we will affirm the judgment of sentence and grant

counsel’s motion to withdraw. We also conclude, pursuant to Third Circuit Local

Appellate Rule 109.2(b), that the issues presented in this appeal lack legal merit for the

purposes of counsel filing a petition for a writ of certiorari in the Supreme Court of the

United States.




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