                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 12-2491
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                              MICHAEL EUGENE SHIPE,

                                                     Appellant
                                     _____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                           (May 9, 2012, at 1:01-CR-00351)
                     District Judge: Honorable Sylvia H. Rambo
                                   _____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  January 11, 2013

              Before: SCIRICA, AMBRO, and FUENTES, Circuit Judges.

                           (Opinion Filed: January 18, 2013)
                                   _____________

                               OPINION OF THE COURT
                                    _____________

FUENTES, Circuit Judge:

       Michael Eugene Shipe’s attorney has filed a motion to withdraw as counsel

pursuant to Anders v. California, 386 U.S. 738 (1967), arguing that there is no merit-

worthy basis for altering the District Court’s decision to impose an aggregate sentence of



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30 months. We agree. Accordingly, we will grant the motion to withdraw and affirm the

sentence.

                                             I.

       Because we write primarily for the parties, we set forth only those facts and

procedural history relevant to our conclusion. On March 5, 2002, Michael Eugene Shipe

(“Shipe”) pled guilty to a superseding information, charging him with two counts of

interstate travel in aid of drug trafficking, in violation of 18 U.S.C. § 1953(a)(3). On

October 2, 2002, the District Court imposed consecutive 60-month terms of incarceration

on each of the counts for an aggravated sentence of 120 months followed by concurrent

three-year terms of supervised release.

       On April 2, 2010, Shipe began serving his supervised release term. On March 3,

2011, Shipe was arrested and charged with possession with the intent to deliver a

controlled substance. On September 1, 2011, Shipe was arrested again for aggravated

assault, escape, fleeing, and eluding a police officer, reckless endangerment, and

possession of controlled substances. Shipe was convicted in the Cumberland County,

Pennsylvania, Court of Common Pleas of possession of a controlled sentence with the

intent to deliver, fleeing, and eluding a police officer, and reckless endangerment, and

received a two to four-year term of imprisonment. On May 9, 2012, the District Court

held a revocation of supervised release hearing and revoked Shipe’s supervised release.

The District Court imposed consecutive 15-month sentences on each of the supervised

release terms for an aggregate sentence of 30 months, which are to be served consecutive

to Shipe’s sentence for the state charges.


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                                             II.

       We have jurisdiction to review this matter pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a). Under Anders, a criminal defendant’s appeal may be dismissed on the

merits and counsel for the defendant may withdraw if, after a “conscientious”

examination of the case, counsel finds that the appeal presents no issue of arguable merit.

Anders, 386 U.S. at 744. “If the [appellate] panel agrees that the appeal is without merit,

it will grant counsel’s Anders motion, and dispose of the appeal without appointing new

counsel.” 3d Cir. L.A.R. 109.2(a).

       Our review of an Anders motion is twofold. United States v. Youla, 241 F.3d 296,

300 (3d Cir. 2001). We consider, first, whether counsel has adequately fulfilled our local

appellate rule’s requirements and, second, whether there are any non-frivolous issues on

appeal after an independent review of the record. Id. We are guided in our review of the

record by the Anders brief itself when the brief appears adequate on its face. Id. at 301.

       Shipe’s counsel submits that he has reviewed the record from the revocation of

release proceeding and has not been able to identify any non-frivolous issues. Counsel

also submits that he has sought input from Shipe and prior counsel regarding any

potential merit-worthy arguments for appeal and has found none. Counsel has identified

three possible issues for appeal: (1) the District Court lacked jurisdiction over the

supervised release revocation hearing; (2) the proof underlying the supervised release

revocation is inadequate; and (3) the sentence was unreasonable. Counsel’s Anders brief

adequately addresses why each of these issues is frivolous, and our independent review of

the record confirms this finding.


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       First, the District Court had subject matter jurisdiction pursuant to 18 U.S.C.

§§ 3231, and was authorized to revoke a term of supervised release under 18 U.S.C. §

3583(e). Second, there are no meritorious issues regarding the adequacy of proof of the

supervised release violations. A district court must find that a defendant violated the

conditions of supervised release based on the preponderance of the evidence. 18 U.S.C.

§ 3583; United States v. Maloney, 513 F.3d 350, 354 (3d Cir. 2008). Shipe admitted to

the violations of his supervised release conditions at his sentencing hearing. Therefore,

there is no merit with respect to this issue.

       Finally, the revocation sentence imposed by the District Court is reasonable. We

will not disturb a sentence imposed by the District Court unless it is “plainly

unreasonable.” United States v. Blackstone, 940 F.2d 877, 894 (3d Cir. 1991). We

review a sentence for reasonableness with respect to the factors set forth in 18 U.S.C. §

3553(a). United States v. Bungar, 478 F.3d 540, 542 (3d Cir. 2007). The Probation

Office prepared a dispositional report in connection with the revocation of Shipe’s term

of supervised release, noting that his advisory imprisonment range would be 30 to 37

months. The District Court revoked Shipe’s supervised release and imposed an aggregate

sentence of 30 months.

       At the revocation hearing, Shipe’s counsel requested that the District Court impose

a sentence that was lower than the 30 to 37 months range because the recent amendments

to the guidelines from the Fair Sentencing Act of 2010 would have lowered the

applicable guideline range at Shipe’s initial sentencing. Because Shipe was unable to

receive any benefit from those amendments because he had already completed his initial


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prison term, his counsel requested a sentence below the advisory range to account for the

additional time that Shipe seemed to have served in excess. The District Court

acknowledged this request but declined to grant it, finding that Shipe was not in prison at

the time of the amendments; there was no way to qualify the application of the

amendments in these circumstances; and, based on the drug quantities involved in the

underlying convictions, his sentence would have remained within the amended guidelines

range.

         We are satisfied that the District Court considered Shipe’s arguments in

attempting to reduce his sentence. In balancing the factors under 18 U.S.C. § 3553(a),

the District Court chose to give greater weight to the fact that Shipe continued criminal

activity while on release, thereby committing a breach of trust and presenting a continued

threat to society. For these reasons, we hold that the sentence imposed by the District

Court was reasonable and any possible issues with respect to Shipe’s revocation sentence

are frivolous.

                                             III.

         For the foregoing reasons, we will grant counsel’s motion to withdraw and affirm

the judgment and sentence of the District Court.




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