NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 22-1898 _______________

UNITED STATES OF AMERICA

v.

CALIXTO TUMBACO, Appellant _______________

On Appeal from the District Court of the Virgin Islands (D.C. No. 3:19-cr-00039-004) Chief District Judge: Honorable Robert A. Molloy _______________

Submitted Under Third Circuit L.A.R. 34.1(a) on December 12, 2023

Before: HARDIMAN, KRAUSE, and RENDELL, Circuit Judges

(Filed: December 22, 2023)

_______________

OPINION* _______________

* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. KRAUSE, Circuit Judge.

Calixto Tumbaco appeals the District Court’s judgment of sentence, which

imposed terms of 120 months in prison and 5 years of supervised release. His counsel

has moved to withdraw under Third Circuit L.A.R. 109.2 and Anders v. California,

(1967), claiming that there are no non-frivolous grounds for appeal. The

Government agrees that there are no non-frivolous issues with respect to Tumbaco’s 120-

month prison sentence or his underlying guilty plea. In an unusual twist, however, the

Government concedes that remand is appropriate because the District Court erred in

imposing the 5-year term of supervised release. We agree. Accordingly, we will deny

counsel’s motion to withdraw and affirm Tumbaco’s conviction, but will vacate the

supervised-release portion of his sentence and remand for re-sentencing on that portion

only.

I. DISCUSSION1

When confronted with an Anders brief, we first ask “whether counsel’s brief in

support of [his] motion fulfills the requirement of L.A.R. 109.2(a),” which requires that

counsel: “(1) demonstrate[] to this Court that [he] has thoroughly examined the record in

1 The District Court had jurisdiction under

and

(a), and we have jurisdiction under

. We review the District Court’s sentence for reasonableness under an abuse-of-discretion standard. Gall v. United States,

(2007). If a defendant failed to object to an issue before the district court, we review that issue for plain error, which requires the defendant to “prove that there was an error; that the error was plain; that it prejudiced his substantial rights; and that not correcting the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings.” United States v. Brito,

, 190 (3d Cir. 2020). 2 search of appealable issues, and (2) explain[] why those issues are frivolous.” United

States v. Langley,

(3d Cir. 2022). We next determine “whether an

independent review of the record presents any non-frivolous issues.”

Defense

counsel’s 24-page Anders brief reflects a good-faith, conscientious examination of the

District Court record. However, after conducting an independent review of the record,

we agree with the Government that the District Court erred in sentencing Tumbaco to 5

years of supervised release.

A. Guilty Plea and 120-Month Prison Sentence

As defense counsel argues in his Anders brief, there are no non-frivolous

appealable issues with respect to Tumbaco’s guilty plea or his sentence of 120 months in

prison.

First, a guilty plea is valid if it is “done voluntarily, knowingly, and intelligently,

‘with sufficient awareness of the relevant circumstances and likely consequences.’”

Bradshaw v. Stumpf,

(2005) (quoting Brady v. United States,

(1970)). The District Court record confirms that these requirements were met.

During Tumbaco’s sentencing, the Court explained each individual count, as well as the

various consequences of a guilty plea on each count. It then ensured that Tumbaco

understood these consequences and was entering a guilty plea voluntarily and

intelligently.

Second, Tumbaco’s 120-month prison sentence was procedurally and

substantively reasonable. When a defendant challenges his sentence, we first “ensure that

3 the district court committed no significant procedural error.”2 Langley,

(quoting Gall v. United States,

(2007)). If there are no procedural errors,

we next determine whether the sentence was substantively reasonable under the totality

of the circumstances.

The District Court did not commit any procedural errors in sentencing Tumbaco to

120 months in prison. The Court correctly calculated a final offense level of 36 and

arrived at a Guidelines range of 188-235 months of imprisonment. The District Court

then meaningfully considered the factors outlined in

(a), extensively

discussing Tumbaco’s role in the offense and any potential disparities between his

sentence and the sentences of his co-defendants. Based on those factors, the Court

sentenced Tumbaco to 120 months in prison, which was well below the Guidelines range.

Tumbaco’s prison sentence was 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.”

(quoting United States v. Tomko,

(3d Cir. 2009)). Here, the District

Court acknowledged that it was sentencing Tumbaco to a prison term longer than the

terms of his co-defendants, but explained that this disparity was justified in light of

Tumbaco’s role as captain of the illegal vessel. And the 120-month sentence that

2 In the sentencing context, procedural errors include “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” United States v. Azcona- Polanco,

(3d Cir. 2017) (quoting United States v. Tomko,

(3d Cir. 2009)). 4 Tumbaco received still fell below the correctly calculated Guidelines range. See United

States v. Woronowicz,

(3d Cir. 2015) (explaining that sentences within

the correct Guidelines range are more likely to be reasonable than those outside the

range). The Court thus demonstrated considerable leniency, and we cannot say that “no

reasonable sentencing court would have imposed the same sentence.” Langley,

(quoting Tomko,

).

Moreover, none of the three grounds for appeal set forth in Tumbaco’s pro se brief

establish a non-frivolous issue. First, Tumbaco claims that the District Court failed to

comply with Federal Rule of Criminal Procedure 32(i)(1)(A), which requires district

courts to verify that defendants and their counsel have read and discussed the presentence

report before sentencing. However, the transcript of the sentencing hearing confirms that

Tumbaco’s allegation is plainly false, as the District Court explicitly confirmed before

sentencing that Tumbaco’s counsel had reviewed the presentence report with his client.

Second, Tumbaco says that the District Court erred because it did not adequately

apply the “safety valve” provision under Sentencing Guideline § 5C1.2 and

(f), which subjects certain qualified criminal defendants to lesser penalties if they

furnish truthful information about their offenses. Again, however, the record contradicts

Tumbaco’s assertion. The District Court correctly recognized that Tumbaco qualified for

the “safety valve” provision and reduced his sentence accordingly.

Finally, Tumbaco argues that the District Court erred by not providing him with a

hearing after he “indicated dissatisfaction with the representation provided” by his

attorney at the time. Tumbaco Br. 3. However, there is no indication that Tumbaco ever

5 asked for a hearing on this issue before the District Court ruled on his attorney’s motion

to withdraw, and Tumbaco does not explain why the Court was legally required to

provide him with such a hearing. When the Court learned of Tumbaco’s dissatisfaction

with his trial counsel, it did exactly what Tumbaco wanted—it granted counsel’s motion

to withdraw and appointed new counsel to represent Tumbaco at sentencing.

B. Supervised Release

Though defense counsel is correct that there are no non-frivolous issues with

Tumbaco’s guilty plea or his 120-month prison sentence, remand is appropriate because

the District Court erred in imposing a 5-year term of supervised release. The District

Court imposed this term of supervised release because it determined that it was the

minimum term mandated by Tumbaco’s statute of conviction. But this determination

was plain error. A defendant who qualifies for the “safety valve” provision under

Sentencing Guideline § 5C1.2 “is not subject to any statutory minimum sentence of

supervised release.” U.S.S.G. § 5D1.2, cmt. n. 2; see also Pepper v. United States,

, 481 n.1 (2011) (citing

(f)). Here, the District Court

determined that Tumbaco qualified for the “safety valve” provision, but incorrectly

believed that “the statute requires an imposition of a [5-year] term of supervised release.”

App. 59, 79. The Court’s error prejudiced Tumbaco’s substantive rights and affected the

fairness of his sentencing proceeding because it resulted in a longer term of supervised

release than he might have received had the Court correctly applied the “safety valve”

provision.

6 II. CONCLUSION

For the foregoing reasons, we will affirm Tumbaco’s conviction, vacate the

supervised-release portion of his sentence, and remand to the District Court for re-

sentencing with respect to supervised release. In view of this disposition, counsel’s

motion to withdraw will be denied.

7