NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 22-1843 _______________

UNITED STATES OF AMERICA

v.

IRA SIMS, Appellant ______________

Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 4-20-cr-00204-009) U.S. District Judge: Hon. Matthew W. Brann ______________

Submitted Under Third Circuit L.A.R. 34.1(a) March 6, 2023 ______________

Before: SHWARTZ, BIBAS, and AMBRO, Circuit Judges.

(Filed: March 8, 2023) ______________

OPINION* ______________

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

Ira Sims appeals his drug conviction and sentence. We agree with his counsel that

there are no nonfrivolous issues for appeal, and so we will grant his counsel’s motion to

withdraw under Anders v. California,

(1967), and affirm.

I

Sims, a bulk supplier of controlled substances, sold fentanyl and heroin to a

confidential informant on two occasions. After the first sale, Sims posted an image on

his Instagram account displaying $100 bills. Law enforcement matched a partial serial

number depicted in the image with the numbers on one of the prerecorded bills the

informant used to buy the drugs.

Sims was charged with conspiracy to distribute and possess with intent to

distribute controlled substances and possession with intent to distribute controlled

substances, in violation of

and 841(a)(1), respectively. Pursuant to a

plea agreement, Sims pleaded guilty to the conspiracy count and the Government agreed

to dismiss the remaining count.

The Probation Office then prepared a Presentence Investigation Report (“PSR”),

which recommended a United States Sentencing Guidelines range of 100 to 125 months’

imprisonment, based on a total offense level of twenty-five and a criminal history

category of V. Sims requested a downward variance to eighty-four months based on his

difficult upbringing, health conditions, amenability to substance abuse treatment, and his

2 limited role in the conspiracy. At the sentencing hearing, the District Court considered

the

(a) sentencing factors, and concluded “a sentence within the

advisory guideline range to be reasonable, . . . appropriate, and not greater than necessary

to meet sentencing objectives” based on Sims’ significant criminal history, the

seriousness of his offense, and the fact that he was on probation at the time he committed

the offense. It sentenced Sims to 100 months’ imprisonment and three years’ supervised

release. App. 89.

Sims appeals and his counsel has moved to withdraw.1

II2

A

Our local rules allow defense counsel to file a motion to withdraw and an

accompanying brief under Anders when counsel has reviewed the record and concludes

that “the appeal presents no issue of even arguable merit.” Third Cir. L.A.R. 109.2(a).

When counsel submits an Anders brief, we must determine: “(1) whether counsel

1 Sims was invited to submit a brief on his own behalf, but he did not do so. 2 The District Court had jurisdiction pursuant to

. We have jurisdiction pursuant to

and

. We exercise plenary review to determine whether there are any nonfrivolous issues for appeal. Penson v. Ohio,

(1988). Because Sims did not object to any aspect of his conviction or sentence, we review for plain error. United States v. Flores-Mejia,

(3d Cir. 2014) (en banc). Additionally, we review the substantive reasonableness of a sentence for abuse of discretion. Gall v. United States,

(2007); United States v. Azcona-Polanco,

(3d Cir. 2017). 3 adequately fulfilled the rule’s requirements; and (2) whether an independent review of the

record presents any nonfrivolous issues.” United States v. Youla,

(3d

Cir. 2001) (citing United States v. Marvin,

(3d Cir. 2000)). An issue is

frivolous if it “lacks any basis in law or fact.” McCoy v. Ct. of Appeals of Wis., Dist. 1,

, 438 n.10 (1988).

To determine whether counsel has fulfilled his obligations, we examine the Anders

brief to see if it (1) shows that he has thoroughly examined the record in search of

appealable issues, identifying those that arguably support the appeal even if wholly

frivolous, Smith v. Robbins,

(2000), and (2) explains why those issues

are frivolous, Marvin,

. If counsel satisfies these requirements, “then

we may limit our review of the record to the issues counsel raised.” United States v.

Langley,

(3d Cir. 2022).

Counsel’s Anders brief satisfies both elements, and an independent review of the

record reveals no nonfrivolous issues for appeal. First, the brief demonstrates a thorough

examination of the record and identifies three potentially nonfrivolous issues: (1) the

District Court’s jurisdiction, (2) the validity of Sims’ guilty plea, and (3) the

reasonableness of Sims’ sentence. Second, the brief explains why the District Court’s

jurisdiction was proper and why any challenge to the plea or sentence would be frivolous

under the governing law. Therefore, counsel’s brief is sufficient, and there are no

nonfrivolous issues warranting an appeal.

4 B

First, the District Court had jurisdiction to enter the judgment of conviction and

sentence. United States district courts have jurisdiction over offenses against the laws of

the United States.

. Sims was convicted of an offense against the

United States, namely conspiracy to distribute and possess with intent to distribute a

mixture or substance containing fentanyl and tramadol in violation of

.

Accordingly, there is no issue of arguable merit concerning the District Court’s

jurisdiction.3

Second, Sims’ guilty plea was valid under the Constitution and Federal Rule of

Criminal Procedure 11.4 During the plea hearing, the District Court placed Sims under

3 Sims’ counsel also correctly notes that venue was proper pursuant to

(a) because Sims admitted to selling controlled substances in Williamsport, Pennsylvania, which is in the Middle District of Pennsylvania. See United States v. Auernheimer,

(3d Cir. 2014) (“Venue would be proper in any district where the [federal law] violation occurred, or wherever any of the acts in furtherance of the conspiracy took place.”). 4 When a defendant enters a guilty plea, he waives various constitutional rights, and those rights must be specifically addressed during a plea hearing. Boykin v. Alabama,

(1969). Accordingly, Rule 11 requires that a district court advise the defendant of, among other things,

the waiver of certain constitutional rights by virtue of a guilty plea, the nature of the charges to which he or she is pleading guilty, the maximum possible penalty to which he or she is exposed, the court’s obligation to apply the Sentencing Guidelines and discretion to depart from those guidelines under some circumstances, and the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.

United States v. Schweitzer,

(3d Cir. 2006) (quotation marks, 5 oath, questioned him in open court, explained that false answers could subject him to

prosecution for perjury, and confirmed his competence. The Court also reviewed his

constitutional rights, including (1) his right to plead not guilty and proceed to trial with

the assistance of counsel who could confront, cross examine, and subpoena witnesses;

(2) his right to testify or not testify at trial; and (3) his right to be presumed innocent by

the jury unless the Government proved his guilt beyond a reasonable doubt. The Court

also informed Sims of the penalties he faced, explained the applicable Sentencing

Guidelines, and described other consequences of his plea. Finally, the record shows that

there was a factual basis for the plea. Because the plea complied with the Constitution

and Rule 11 and the record supports the Court’s finding that the plea was knowing and

voluntary, there is no issue of arguable merit concerning the plea’s validity.

Third, Sims’ sentence is procedurally and substantively reasonable. See United

States v. Tomko,

(3d Cir. 2009) (en banc). With respect to procedural

reasonableness, a district court must (1) calculate the applicable Guidelines range,

(2) consider departure motions, and (3) meaningfully address all relevant factors under

(a). United States v. Gunter,

(3d Cir. 2006).

The District Judge fulfilled these procedural requirements. First, the Court’s

alterations, and citations omitted). A district court must also “ensure that the defendant receives these caveats, understands them, and still wishes of his or her own volition to plead guilty.” Id. at 203. 6 Guidelines calculation was supported by the facts and law,5 and Sims withdrew his only

objection to the PSR prior to the sentencing hearing. Second, there were no departure

motions and Sims requested only a downward variance. App. 78-79. The Court

considered the factors in support of a variance, such as Sims’ difficult upbringing, health

issues, and drug addiction. It balanced these mitigating factors against Sims’ multiple

prior convictions for drug-related offenses, his limited employment history, and the

seriousness of the offense. In particular, the Court noted that Sims was a “manager” of

the conspiracy, distributed heroin laced with fentanyl, a particularly lethal substance with

a “devastating impact on any community,” and committed the offense while on

probation. App. 87-88. The Court thus gave “rational and meaningful consideration” to

the § 3553(a) factors. Tomko,

(quoting United States v. Grier,

(3d Cir. 2007) (en banc)). Based on the above, the Court complied with Gunter

and imposed a procedurally reasonable sentence.

The 100-month sentence, which is at the bottom of the Guidelines range, 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

5 The District Court accurately calculated a Guidelines range of 100 to 125 months’ imprisonment based on the offense level of twenty-five and criminal history category of V. The offense level captured the amount of drugs attributable to Sims, his possession of a firearm in connection with the offense, his role as a manager in the offense, as well as his acceptance of responsibility for his actions. The Court also correctly recognized that the offense carried a statutory maximum of twenty years. 7 the reasons the district court provided.”

Because the sentence here falls within the

Guidelines range, we can presume its reasonableness. See Rita v. United States,

(2007) (concluding that “a court of appeals may apply a presumption of

reasonableness to a district court sentence that reflects a proper application of the

Sentencing Guidelines”). Furthermore, given Sims’ leadership role in the drug

conspiracy, the impact of fentanyl distribution on the community, his extensive criminal

history, and his commission of the crime while on probation, we cannot conclude that no

reasonable sentencing court would have imposed the same sentence. Thus, any challenge

to the substantive reasonableness of Sims’ sentence would lack merit.

III

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

the District Court’s judgment and sentence.

8