                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-9-2008

USA v. Villegas-Rodriguez
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3400




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Recommended Citation
"USA v. Villegas-Rodriguez" (2008). 2008 Decisions. Paper 1781.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1781


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                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                     No. 06-3400


                          UNITED STATES OF AMERICA

                                          v.

                          ERICK VILLEGAS-RODRIGUEZ,

                                                             Appellant

                                   _____________

                     Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                              Criminal No. 05-cr-00202
                     District Judge: Honorable Paul S. Diamond
                                    ____________

                    Submitted Under Third Circuit L.A.R. 34.1(a)
                               on January 8, 2008
                                 ____________

          Before: FISHER, HARDIMAN AND ALDISERT, Circuit Judges

                               (Filed January 9, 2008)



                                      OPINION


ALDISERT, Circuit Judge

     Before us is an appellate brief filed by counsel for Appellant pursuant to Anders v.
California, 386 U.S. 738 (1986), and a motion to withdraw as counsel. Under Anders,

defense counsel must submit a brief referring to anything in the record that might

arguably support an appeal. Id. at 744. An Anders brief must (1) “satisfy the Court that

counsel has thoroughly examined the record in search of appealable issues,” United

States. v. Youla, 241 F.3d 296, 300 (3d Cir. 2001); (2) identify any “issues arguably

supporting the appeal even though the appeal was wholly frivolous,” Smith v. Robbins,

528 U.S. 259, 285 (2000); and (3) “explain why the issues are frivolous,” United States v.

Marvin, 211 F.3d 778, 781 (3d Cir. 2000). After notification of counsel’s filing of the

Anders brief, Appellant did not file a pro se brief.

       In the Anders brief, counsel identified a possible appealable issue in the sentencing

of Appellant to 10 months of imprisonment and five years of supervised release for a

second violation of a previously imposed term of supervised release. Nonetheless,

counsel deems an appeal of this issue to be frivolous.

       In reviewing a sentence for a violation of supervised release, this Court will apply

the same reasonableness analysis which is applicable to the review of any custodial

sentence. United States v. Bungar, 478 F.3d 540, 542 (3d Cir. 2007). We conclude that

this second sentence imposed for violating supervised release met the standard of

reasonableness set forth in United States v. Cooper, 437 F.3d 324 (3d Cir. 2006). After

acknowledging that the guideline range was advisory and not mandatory, the District

Court rejected the Government’s suggestion of a sentence above the guidelines and

imposed a sentence of ten months imprisonment. The sentence imposed was within the

                                              2
advisory sentencing guideline of four to ten months.

       We are satisfied that defense counsel’s motion to withdraw follows “a full

examination of all of the proceedings,” Anders, 386 U.S. at 744, “that the attorney has

provided the client with a diligent and thorough search of the record for any arguable

claim that might support the client’s appeal,” McCoy v. Court of Appeals of Wisconsin,

486 U.S. 429, 442 (1988), and that the appeal is wholly frivolous as it “lacks any basis in

law or fact,” id. at 438 n.10. Therefore, the Anders brief is accepted, and counsel is not

required to file a petition for writ of certiorari in the Supreme Court of the United States.

       The judgment of the District Court will be affirmed.




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