NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________

No. 19-3751 _________________

UNITED STATES OF AMERICA

v.

LUIS ANTONIO MEMBRENO-DOMINGUEZ, aka Luis A. Dominque aka Luis A. Domingues aka Luis R. Membreno-Dominques,

Appellant

_________________

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 3-19-cr-00061-001) District Judge: Hon. Freda L. Wolfson _________________

Submitted Under Third Circuit L.A.R. 34.1(a) July 9, 2020

Before: McKEE, BIBAS, and FUENTES, Circuit Judges.

(Filed: August 3, 2020) _________________

OPINION ** _________________

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

Appellant Luis Antonio Membreno-Dominguez pleaded guilty to illegal reentry and

was sentenced to 46 months in prison. His appellate counsel moves for permission to

withdraw pursuant to Anders v. California,1 asserting that there are no nonfrivolous issues

to raise on appeal. For the following reasons, we will grant the motion and affirm the

judgment of the District Court.

I.

Luis Antonio Membreno-Dominguez, a native of Honduras, was previously

deported from the United States on three separate occasions, including after a 2010 illegal

reentry conviction in the Southern District of Texas. Without permission, he reentered the

United States and was later stopped following a traffic infraction in Mount Laurel, New

Jersey. He was indicted and charged with illegal reentry, 2 and jurisdiction over his

supervised release from the Southern District of Texas was transferred to the District of

New Jersey to be resolved with the instant offense.

In May 2019, Membreno-Dominguez pleaded guilty to illegal reentry and violating

a term of his supervised release. In advance of sentencing, the Probation Office prepared a

Presentence Report (“PSR”) recommending a United States Sentencing Guidelines

(“Guidelines”) range of 63 to 78 months’ imprisonment, based on a total offense level of

19 and a criminal history category of VI.

1

(1967). 2

(a), (b)(2). 2 At sentencing, neither party objected to the PSR. Membreno-Dominguez moved for

a downward variance and, after considering the parties’ arguments and the sentencing

factors under

(a), the District Court sentenced him to 51 months’

imprisonment.

Membreno-Dominguez appealed, and while that appeal was pending, the parties

discovered that his term of supervised release, the violation of which he also pleaded guilty

to, had expired. Upon Membreno-Dominguez’s motion for summary action, this Court

vacated the sentences and remanded the matter to the District Court for resentencing.

At resentencing, the District Court dismissed the supervised release violation and

re-calculated Membreno-Dominguez’s Guidelines range. The District Court and the parties

agreed that his criminal history category was a level V, resulting in an advisory Guidelines

range of 57 to 71 months’ imprisonment. Membreno-Dominguez again moved for a

downward variance, arguing that his return to this country was motivated primarily by his

desire to be with his daughter and to escape the violence in his native country of Honduras. 3

Upon hearing from the parties and considering the § 3553(a) factors, the District Court

granted the motion for a downward variance and resentenced Membreno-Dominguez to a

term of 46 months’ imprisonment. 4 This appeal followed.

II. 5

3 Counsel also relied on her previous sentencing submission and arguments in support of a downward variance. 4 The District Court also relied on its previous evaluation of the relevant sentencing factors. 5 The District Court had jurisdiction under

. We have jurisdiction over the appeal pursuant to

and

(a). The Court exercises plenary 3 Under Anders, appellate counsel may file a motion to withdraw from a criminal

appeal when “the indigent criminal defendant he represents wishes to pursue frivolous

arguments.” 6 When counsel submits an Anders brief, we must determine “(1) whether

counsel adequately fulfilled the rule’s requirements; and (2) whether an independent

review of the record presents any nonfrivolous issues.” 7

The first prong of the Anders analysis is satisfied if defense counsel has (1)

“thoroughly examined the record in search of appealable issues,” and (2) “explain[ed] why

the issues are frivolous.” 8 If these requirements are met, the Anders brief guides our review

of the record. 9 Then, “[i]f 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.” 10

To discharge her duties under Anders, counsel appropriately points to three issues:

(1) the District Court’s jurisdiction; (2) the validity of the guilty plea; and (3) the

reasonableness of the sentence. 11 Counsel’s discussion of these issues shows that she

carefully examined the record and applicable case law in determining that there are no

nonfrivolous issues to raise. Thus, we find that counsel has “provided sufficient indicia that

review to determine whether there are any nonfrivolous issues. See Penson v. Ohio,

(1988); Simon v. Gov’t of the V.I.,

(3d Cir. 2012). 6 United States v. Youla,

(3d Cir. 2001). 7

at 300 (citing United States v. Marvin,

(3d Cir. 2000)). 8

9 Id. at 300-01. 10 3d Cir. L.A.R. 109.2(a). 11 See United States v. Broce,

(1989) (noting that “[a] plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence,” and thus any further inquiry is limited to the plea’s validity and the legality of the sentence imposed). 4 [s]he thoroughly searched the record and the law in service of [her] client so that we might

confidently consider only those objections raised.” 12

First, it is clear that the District Court had jurisdiction under

,

because Membreno-Dominguez was charged with and pleaded guilty to illegal reentry, a

federal offense. Thus, any challenge to the District Court’s jurisdiction would be frivolous.

Second, nothing in the record undermines the validity of Membreno-Dominguez’s

plea. Upon observing and questioning Membreno-Dominguez, the District Court found

that he was competent to plead guilty. The District Court informed Membreno-Dominguez

of the rights he was forfeiting and warned him as to the consequences of his plea. It

explained the nature of his offense and its potential sentence, including the statutory

maximum sentence he faced. Satisfied with counsel’s representation, Membreno-

Dominguez admitted to facts establishing an adequate basis for his plea. His guilty plea

was knowing and voluntary, and we agree with counsel that any issue as to the validity of

the guilty plea would be frivolous.

Third, any challenge to the procedural and substantive reasonableness of the

sentence would be frivolous. Membreno-Dominguez’s sentence complied with Rule 32’s

procedural requirements. With respect to procedural reasonableness of a sentence, a district

court must (1) correctly calculate the applicable Guidelines range; (2) consider any

departure motions; and (3) meaningfully consider all the § 3553(a) factors. 13 Here, the

District Court correctly calculated Membreno-Dominguez’s advisory Guidelines range.

12 Youla,

(quoting Marvin,

). 13 United States v. Merced,

(3d Cir. 2010). 5 After hearing from the parties and considering the § 3553(a) factors, the District Court

granted an eleven-month downward variance from the advisory Guidelines range. 14 The

Court meaningfully considered Membreno-Dominguez’s arguments and justified its

decision to sentence below the Guidelines.

The sentence is also substantively reasonable. A sentence is substantively

reasonable unless “no reasonable sentencing court would have imposed the same sentence

on that particular defendant for the reasons the district court provided.” 15 The District

Court’s sentence reflects an appropriate consideration of the relevant sentencing factors,

including Membreno-Dominguez’s criminal history and the nature and circumstances of

the offense. Further, the sentence fell eleven months below the bottom of the Guidelines

range. Accordingly, any challenge to the substantive reasonableness of the sentence would

be frivolous.

III.

Having reviewed the record and counsel’s Anders brief, we agree with counsel that

any issue Membreno-Dominguez could raise on appeal would be frivolous. Accordingly,

we will grant counsel’s motion to withdraw and affirm the District Court’s judgment.

Counsel is also relieved of the obligation to file a petition for writ of certiorari in the

Supreme Court of the United States. 16

14 The District Court also relied on its evaluation of Membreno-Dominguez’s § 3553(a) factors from the first sentencing hearing. 15 United States v. Tomko,

(3d Cir. 2009). 16 See 3d Cir. L.A.R. 109.2(a)–(b). 6