NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 18-1314 ________________

UNITED STATES OF AMERICA

v.

TOREY D. WHITE, Appellant ________________

Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal Action No. 1-16-cr-00294-001) District Judge: Honorable Christopher C. Conner ________________

Submitted Under Third Circuit L.A.R. 34.1(a) November 5, 2018

Before: AMBRO, SCIRICA, and RENDELL, Circuit Judges

(Opinion filed: November 19, 2018) ________________

OPINION * ________________

AMBRO, Circuit Judge

The United States Government filed a three-count indictment against Torey White,

which included a charge for possession with intent to distribute at least 28 grams of

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. cocaine, in violation of

(a)(1) (“Count One”). The next day, agents

searched White’s residence and found drugs, firearms, and ammunition. The

Government filed a superseding indictment adding three more charges, including

possession of a firearm and ammunition in the furtherance of drug trafficking, in

violation of

(c) (“Count Five”). White pled guilty to Counts One and

Five. He was sentenced to a term of 70 months’ imprisonment on Count One, and a

consecutive 60 months on Count Five.

White appealed his sentence, arguing

(c) was rendered

unconstitutional by Sessions v. Dimaya,

(2018). His court-appointed

counsel filed a motion to withdraw pursuant to Local Appellate Rule (“L.A.R.”) 109.2(a)

and a supporting Anders brief arguing that any appeal was frivolous. See United States v.

Diallo,

, 97 (3d Cir. 2018); see also Anders v. California,

(1967). Pursuant to Rule 109.2(a), the Government must respond to an Anders brief.

Here the Government agrees that all claims are frivolous. White did not file a pro se

brief in response. The District Court had jurisdiction under

, and we

have jurisdiction under

.

Rule 109.2(a) provides an opportunity for defense counsel, a pro se defendant, and

the Government to weigh in on whether all of a defendant’s claims are frivolous, and, if

so, whether counsel may withdraw from the case. L.A.R. 109.2(a). “If the panel agrees

that the appeal is without merit, it will grant counsel’s Anders motion, and dispose of the

appeal without appointing new counsel.”

When reviewing an appeal that includes an

Anders brief, we apply plenary review, Simon v. Government of the Virgin Islands, 679

(3d Cir. 2012), and consider “(1) whether counsel adequately fulfilled

[Rule 109.2(a)]; and (2) whether an independent review of the record presents any

nonfrivolous issues,” United States v. Youla,

(3d Cir. 2001).

The first prong of the Anders analysis is fulfilled if the defense counsel has

“satisfactorily established that he or she ‘has thoroughly examined the record in search of

appealable issues’ and ‘explain[ed] why [those] issues are frivolous.’” Diallo, 732 F.

App’x at 97 (quoting Youla,

). Counsel’s failure to address fully the

issues, however, is not the “conscientious examination” of the record required for an

Anders brief. United States v. Coleman,

(3d Cir. 2009) (citing Anders,

). Because we are convinced that counsel’s Anders brief “satisfie[d] the

requirements of Rule 109.2(a), identified all appealable issues, and explained why those

issues are frivolous,” United States v. Barnes,

(3d Cir. 2017), we

turn to the second prong of the Anders analysis: independent review of the record. See

Anders,

.

Like his counsel, we see none of the claims White brings on appeal as meritorious.

First, he argues that the statute under which he pled guilty to the firearm offense,

(c), was rendered unconstitutional by Dimaya. But that case held only that

the residual clause of a different subsection of the statute—§ 924(e)(2)(B)—was void for

vagueness. See 138 S. Ct. at 1211–12. This holding does not bear on § 924(c).

Second, White contends that his 70-month sentence for the drug offense and his

mandatory 60-month sentence for the gun offense should have run concurrently, not

consecutively. But

(c)(1)(D)(ii) requires that a mandatory 60-month

3 sentence for a firearm offense run consecutively. See also United States v. Walker,

(3d Cir. 2007) (rejecting a similar challenge to a consecutive sentence under

section 924(c)).

Third, he asserts that the sentence for his drug offense should be vacated because

the Government did not present evidence of the quantity of cocaine. But White himself

pled guilty to possessing over 28 grams of cocaine and did not object to the presentence

report that stated he had 29 grams of cocaine.

Finally, White argues that the District Court should have departed downward from

the Guideline range for the drug offense. But, in the absence of strong mitigating factors,

it would make little to no sense to hold that the Court abused its discretion by adopting a

sentence at the bottom of that range. See United States v. Woronowicz,

(3d Cir. 2014); see also United States v. Serino,

(3d Cir.

2009) (citing Rita v. United States,

, 350–51 (2007)).

Thus we affirm.

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