                                                          NOT PRECEDENTIAL


                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                 __________

                                 No. 13-1409
                                 __________

                      UNITED STATES OF AMERICA

                                      V.

                            JAMES KNOTT, JR.,
                              a/k/a T-Money

                            JAMES KNOTT, JR.,
                                        Appellant
                               __________

                On Appeal from the United States District Court
                         for the District of New Jersey
                   (D.C. Criminal No. 1-12-cr-00579-001)
                 District Judge: Honorable Robert B. Kugler

                  Submitted Under Third Circuit LAR 34.1(a)
                             November 13, 2013

        BEFORE: HARDIMAN, SCIRICA, and NYGAARD, Circuit Judges


                            (Filed: March 7, 2014)

                                 __________

                          OPINION OF THE COURT
                                __________

NYGAARD, Circuit Judge.
       Appellant James Knott was arrested for selling heroin to an undercover

confidential informant and charged with two counts of distribution and possession of a

Schedule I controlled substance, violations of 21 U.S.C. § 841(a) and § 841(b)(1)(C), and

18 U.S.C. § 2. Knott pleaded guilty to these counts and was sentenced to a term of 151-

months imprisonment. In sentencing the appellant, the District Court noted that it had the

discretion to issue a non-guidelines sentence, but chose not to depart.

       Knott filed a pro se notice of appeal, challenging his sentence but not his

conviction. We appointed Ruth M. Liebesman, Esquire, to represent Knott on appeal.

Attorney Liebesman has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), stating that there are no meritorious issues for appeal and asking permission to

withdraw her representation. Knott did not file a pro se supplemental brief.

       Counsel may move to withdraw from representation if, “upon review of the

district court record,” she “is persuaded that the appeal presents no issue of even arguable

merit.” 3d Cir. L.A.R. 109.2(a); see also Anders, 386 U.S. at 744 (“[I]f 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.”). Our “inquiry when counsel submits an

Anders brief is . . . 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). If “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 omitted).



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       Counsel complied with Third Circuit Local Appellate Rule 109.2(a). Attorney

Liebesman’s Anders brief identifies two potential areas of review: (1) whether Knott

entered a valid guilty plea; and (2) whether the District Court erred in refusing to

downwardly depart from the Career Criminal Guideline. The Anders brief then explains

why there are no non-frivolous issues for appeal. Based on our independent review, we

reach the same conclusion.

       First, the District Court properly conducted the plea hearing. As counsel

thoroughly lays out in the brief, the record clearly demonstrates that during that hearing,

the District Court advised and questioned Knott pursuant to Rule 11(b) (1) of the Federal

Rules of Criminal Procedure; determined that there was sufficient factual basis for his

guilty plea; and ensured that the plea was knowing and voluntary and that there were no

questions as to Knott’s comprehension or competence. Knott’s plea was therefore

indisputably valid.

       Second, we “lack jurisdiction to review a refusal to depart downward when the

district court, knowing it may do so, nonetheless determines that departure is not

warranted.” United States v. McQuilkin, 97 F.3d 723, 729 (3d Cir. 1996). Here, the

District Court specifically indicated at the sentencing hearing that it knew it was

permitted to depart downward but declined to do so. See Appendix at 73-74. Therefore,

the District Court’s decision not to grant a variance is not appealable.

       Accordingly, after our independent examination of the record, we find that there

are no non-frivolous issues that could be raised on appeal. Thus, we will affirm the

District Court’s judgment of sentence and we will grant counsel’s motion to withdraw.

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Finally, we certify that the issues presented herein lack legal merit and that counsel is not

required to file a petition for writ of certiorari with the Supreme Court. 3d Cir. L.A.R.

109.2(b).




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