NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______

No. 20-1458 ____________

UNITED STATES OF AMERICA

v.

ERIC RIVERA, Appellant ____________

On Appeal from the United States District Court for the District of New Jersey (No. 1:14-CR-00283-10) District Judge: Hon. Renee M. Bumb ____________

Submitted Pursuant to Third Circuit LAR 34.1(a) February 8, 2021 ____________

Before: CHAGARES, SCIRICA, and COWEN, Circuit Judges

(Filed: February 24, 2021) ____________

OPINION* ____________

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

Eric Rivera was sentenced to 12 months of imprisonment after pleading guilty to

violating the terms of his supervised release from a prior conviction. The sentence was to

be served consecutively to a state sentence of 18 months of imprisonment, imposed after

Rivera pleaded guilty to aggravated assault with a firearm. His attorney has filed a

motion to withdraw under Anders v. California,

(1967). For the reasons

that follow, we will grant the motion and affirm the judgment of sentence.

I.

We write primarily for the parties, so our summary of the facts is brief. In October

2016, Rivera pleaded guilty to using a communication facility to further a controlled

substance offense, a Class E felony. He was sentenced in January 2017 to time served of

about 32 months and one year of supervised release. On January 9, 2018, the District

Court issued a summons for Rivera; the summons stated that he violated the conditions of

his supervised release by driving without a license and failing to timely report to his

probation officer after being questioned by a law enforcement officer. Rivera pleaded

guilty in May 2018 to failing to timely report to his probation officer and was sentenced

to one day of imprisonment and 10 months of supervised release.

On July 26, 2018, an arrest warrant was issued for Rivera alleging that he again

violated the conditions of his supervised release by committing a new crime and

possessing a firearm, both in connection with a shooting in Camden, New Jersey on July

8. Rivera was initially charged in the corresponding state proceedings with multiple

felony counts, including two for attempted murder, but there was no proof that he and not

2 another participant fired the weapon that hit two victims. He pleaded guilty on October

15, 2018 to one count of aggravated assault with a firearm.

Rivera appeared with counsel before the District Court on February 19, 2020. The

parties agreed that Rivera would plead guilty to committing a new crime in violation of

the terms of his supervised release and that the Government would dismiss the firearm

possession charge. During the hearing, Rivera admitted that he had committed

aggravated assault by pointing a firearm in the general direction of two victims and had

pleaded guilty to that crime. The District Court accepted Rivera’s plea and moved

directly to sentencing.

Both parties argued for a sentence of 12 months of imprisonment — the statutory

maximum under §

(e)(3) for Rivera’s underlying Class E felony — but

disputed whether it should run consecutively to or concurrently with Rivera’s state

sentence. The District Court imposed a sentence of 12 months of imprisonment to run

consecutive to the state sentence, concluding that a concurrent sentence would be too

lenient and send the wrong message.

Rivera timely appealed. His attorney seeks to withdraw because there is no viable

basis for appeal.

3 II.1

Under Anders, court-appointed counsel may — after finding any appeal “to be

wholly frivolous” after careful examination of the record — file a brief “advis[ing] the

Court and request[ing] permission to withdraw” and identifying “anything in the record

that might arguably support the appeal.”

. In evaluating a motion to

withdraw, the Court’s inquiry is twofold: “(1) whether counsel adequately fulfilled [this

Court’s] requirements” under Third Circuit Local Appellate 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 withdrawing counsel’s brief must “satisfy the court that counsel has

thoroughly examined the record in search of appealable issues” and “explain why the

issues are frivolous.”

An appeal is frivolous if “the appeal lacks any basis in law or

fact.” McCoy v. Court of Appeals,

, 438 n.10 (1988). If “the Anders brief

initially appears adequate on its face,” the second step of our inquiry is “guided . . . by the

Anders brief itself.” Youla,

(quotation marks omitted). “[A] complete

scouring of the record” is unnecessary.

Rivera’s counsel’s Anders brief is facially adequate, so we confine our review to

the issues identified by the brief. Rivera’s counsel has identified three possible areas of

review: (1) whether the District Court had jurisdiction; (2) whether Rivera’s February

19, 2020 revocation proceedings were valid and complied with Federal Rule of Criminal

1 The District Court had jurisdiction pursuant to

and

(e). We have jurisdiction pursuant to

and

(a). 4 Procedure 32.1; and (3) whether Rivera’s sentence was procedurally and substantively

reasonable. Rivera did not file a pro se brief in response.

We first examine whether the District Court had jurisdiction. We conclude that

the District Court properly exercised subject matter jurisdiction and was authorized to

revoke Rivera’s sentence of supervised release under

(e). Rivera did not

raise any objection to the District Court’s jurisdiction or authority to revoke his

supervised release.

We next examine whether Rivera’s revocation proceedings complied with Federal

Rule of Criminal Procedure 32.1. Rivera was provided written notice of the alleged

violation of supervised release. He appeared in person at the proceedings and was

represented by appointed counsel. Additionally, he was given the opportunity to

challenge the government’s proof and dispute revocation, but voluntarily waived those

rights and entered a guilty plea. We conclude that the revocation proceedings complied

with Rule 32.1 and that there is no non-frivolous basis to challenge the validity of those

proceedings.

Finally, we examine whether Rivera’s sentence was procedurally and

substantively reasonable.2 A sentencing court must follow three procedural steps: (1)

calculate the appropriate Guidelines range; (2) rule on any departure motions; and (3)

exercise discretion by considering the relevant

(a) factors. See United

2 We review sentences imposed for violations of supervised release for reasonableness. United States v. Bungar,

(3d Cir. 2007). We review the reasonableness of a sentence under an abuse-of-discretion standard and will not reverse unless no reasonable court would have imposed such a sentence. United States v. Tomko,

(3d Cir. 2009) (en banc). 5 States v. Flores-Mejia,

(3d Cir. 2014) (en banc). We discern no

procedural or substantive error here. The District Court heard from the government,

defense counsel, and Rivera himself, correctly calculated the Guidelines range,3 and

considered the § 3553(a) factors (there were no departure motions). The court then

reasonably applied the § 3553(a) factors to this case by imposing a sentence of 12 months

of imprisonment to run consecutively to Rivera’s state sentence. This sentence was

reasonable in light of Rivera’s lengthy criminal history, the leniency he previously

received,4 the fact that this was his second violation of supervised release, the short

window between his first and second violations, and the limited length of the sentence

relative to the 33 to 41-month Guidelines range that would be applicable absent the

statutory maximum. Nor is there any basis to challenge the consecutive nature of

Rivera’s sentence. Sentencing courts are afforded wide discretion under

to choose between concurrent and consecutive terms, and the Guidelines

recommend that terms of imprisonment imposed upon revocation of supervised release

be served consecutively. U.S.S.G. § 7B1.3(f). The record reflects that the District Court

understood that it was not required to impose the sentences consecutively, but rather

could exercise discretion in deciding whether or not to do so. The court heard argument

on this issue and provided an explanation for the imposition of the consecutive sentence.

The District Court did not abuse its discretion by imposing a consecutive sentence here.

3 Absent the 12-month statutory maximum in

(e)(3), Rivera’s Guidelines range would have been 33 to 41 months. 4 Rivera’s underlying federal conviction — using a communication facility to further a controlled substance offense, a Class E felony — was originally charged as a two-count conspiracy to distribute controlled substances. 6 We conclude that counsel has fulfilled the requirements of Anders by making a

thorough examination of the record. This Court has independently reviewed the record

and likewise failed to identify any non-frivolous issues. Accordingly, we conclude that

there are no non-frivolous issues for Rivera to raise on appeal.

III.

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

affirm the District Court’s judgment of sentence. In addition, we certify that the issues

presented 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).

7