NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 20-1436 _____________

UNITED STATES OF AMERICA

v.

MAUDILIO DIAZ-VAZQUEZ, also known as MAGDILIO DIAZ-VAZQUEZ, Appellant ________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 5-19-cr-00573-001) District Judge: Honorable Joseph F. Leeson, Jr. ______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) April 12, 2021 ______________

Before: CHAGARES, JORDAN, and SCIRICA, Circuit Judges

(Filed: May 14, 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.

Maudilio Diaz-Vazquez was sentenced to twenty-four months of imprisonment

after pleading guilty to illegal reentry after deportation. The sentence was to be served

consecutively to a state sentence of seven to twenty years of imprisonment, imposed after

Diaz-Vazquez pleaded guilty to sex offenses involving a minor. 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. Diaz-

Vazquez is a native and citizen of Guatemala. In 2012, he was removed from the United

States and warned that illegal reentry could subject him to imprisonment. Diaz-Vazquez

nevertheless reentered the country without permission in 2014, eventually making his

way to Pennsylvania. Immigration and Customs Enforcement agents arrested Diaz-

Vazquez there in 2018, at which time he admitted his prior removal and reentry.

On September 25, 2019, a grand jury returned an indictment charging Diaz-

Vazquez with one count of illegal reentry after deportation, in violation of

(a). Diaz-Vazquez pleaded guilty to that charge on November 15, 2019. On

February 20, 2020, the District Court sentenced Diaz-Vazquez to twenty-four months of

imprisonment and one year of supervised release. The court ordered that the sentence run

consecutively to Diaz-Vazquez’s seven- to twenty-year state sentence of imprisonment,

though Diaz-Vazquez argued that his federal and state sentences should run concurrently.

2 Diaz-Vazquez timely appealed. His attorney seeks to withdraw because there is

no viable basis for appeal.

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) (citations omitted).

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 of Wis., Dist. 1,

, 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,

(citation and quotation

marks omitted). “[A] complete scouring of the record” is unnecessary.

Diaz-Vazquez’s counsel’s Anders brief is facially adequate, so we confine our

review to the issues identified by the brief. Counsel has identified three possible areas of

1 The District Court had jurisdiction pursuant to

. We have jurisdiction pursuant to

(a) and

. 3 review: (1) whether the District Court had jurisdiction; (2) whether Diaz-Vazquez’s

guilty plea was valid under both constitutional and statutory standards; and (3) whether

Diaz-Vazquez’s sentence was within the statutory maximum sentence and procedurally

and substantively reasonable. Diaz-Vazquez did not file a pro se brief in response.

We first examine whether the District Court had jurisdiction, and we conclude that

it did. District courts have jurisdiction over criminal offenses under

,

and the indictment adequately charged Diaz-Vazquez with the offense of illegal reentry

after deportation by alleging that he was an alien who had previously been deported from

the United States and then knowingly reentered without the permission of the Attorney

General. See

(a).

We next examine whether Diaz-Vazquez’s guilty plea was valid. We conclude

that it was, as the District Court properly advised Diaz-Vazquez of his rights and the

potential consequences of a guilty plea. The District Court’s colloquy satisfied the

requirements of the Constitution by ensuring that Diaz-Vazquez made a knowing and

voluntary waiver of his rights to a trial by jury, to confront his accusers, and to maintain

his privilege against self-incrimination. See Boykin v. Alabama,

(1969). The court also informed Diaz-Vazquez of other rights he possessed, the potential

penalties he faced, and the court’s authority and obligations, as detailed in Federal Rule

of Criminal Procedure 11(b)(1). The District Court additionally determined the

voluntariness and factual basis for Diaz-Vazquez’s plea. See Fed. R. Crim. P. 11(b)(2)–

(3). Diaz-Vazquez has not moved to withdraw his guilty plea or argued that it was

involuntary or unknowing and we have no basis to hold that it was invalid.

4 Finally, we examine the legality of Diaz-Vazquez’s sentence, which must be both

procedurally and substantively reasonable. See United States v. Bungar,

,

542–43 (3d Cir. 2007). 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

States v. Flores-Mejia,

(3d Cir. 2014) (en banc). The District Court

properly calculated the Guidelines range of imprisonment as between twenty-one and

twenty-four months, accounting for the two-year statutory maximum term of

imprisonment applicable under

(a). While the court did not explicitly

rule on Diaz-Vazquez’s motion for a departure to credit him for time served in state

custody, we need not remand for that reason alone. The Government did not dispute that

the District Court possessed the authority to grant that departure, and the record makes

clear that the court exercised its discretion not to do so. See United States v. Handerhan,

, 121–22 (3d Cir. 2014). The District Court reasonably assessed the §

3553(a) factors, highlighting the need for deterrence and protection of the public in light

of Diaz-Vazquez’s serious sex offenses. The sentence ultimately imposed was consistent

with this assessment, as the court was authorized to impose a one-year term of supervised

release under

(b) and to make its sentence consecutive to Diaz-

Vazquez’s state sentence under

(a). Because the District Court

“committed no significant procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to

consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or

5 failing to adequately explain the chosen sentence,” we conclude that its sentence was

procedurally reasonable. United States v. Tomko,

(3d Cir. 2009) (en

banc) (citation omitted). And because the District Court’s sentence was “premised upon

appropriate and judicious consideration of the relevant factors,” we hold that it was also

substantively reasonable. United States v. Doe,

(3d Cir. 2010),

overruled on other grounds by United States v. Schonewolf,

, 689–90 (3d

Cir. 2018).

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 Diaz-Vazquez 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).

6