NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-2414
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UNITED STATES OF AMERICA
v.
DANIEL P. SCHULTZ,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 13-po-000006-001)
District Judge: Honorable Malachy E. Mannion
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Submitted Under Third Circuit LAR 34.1(a)
January 16, 2014
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Before: RENDELL, ROTH and BARRY, Circuit Judges
(Opinion Filed: February 5, 2014 )
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OPINION
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BARRY, Circuit Judge
Daniel P. Schultz appeals his sentence of two months’ imprisonment. His counsel
filed a motion to withdraw and supporting brief pursuant to Anders v. California, 386
U.S. 738 (1967), asserting that there are no non-frivolous issues for appeal. We will
affirm the judgment of the District Court and grant counsel’s motion to withdraw.
I.
In the early hours of January 31, 2013, park rangers patrolling the Delaware Water
Gap National Recreation Area found Schultz asleep in the driver’s seat of a car parked
along the McDade Trail, which is closed to motorized vehicles, with the keys in the
ignition and the engine running. Upon further inspection of Schultz’s car, the rangers
observed marijuana in the center console and detected the smell of alcohol. They
administered an on-site breathalyzer test, which revealed that Schultz’s blood alcohol
content (“BAC”) was 0.12%. The rangers took him into custody and brought him to a
nearby ranger station, where he refused to undergo further sobriety testing. The rangers
then prepared violation notices charging him with four regulatory offenses: (1) operating
a vehicle on national parkland with a BAC above 0.08%, in violation of 36 C.F.R.
§ 4.23(a)(2); (2) refusal to submit to a BAC test, in violation of 36 C.F.R. § 4.23(c)(2);
(3) possession of a controlled substance, in violation of 36 C.F.R. § 2.35(b)(2); and
(4) operating a vehicle off a park road, in violation of 36 C.F.R. § 4.10(a).
Schultz was arraigned the same day. At the arraignment, counsel informed the
District Court that Schultz had agreed to plead guilty to the operating-under-the-influence
offense and, in exchange, the government had agreed to move for dismissal of the three
remaining charges. The Court, having already advised Schultz that each of the charged
offenses carried a maximum sentence of six months’ incarceration, had counsel for the
government recite the factual basis for the operating-under-the-influence charge. The
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Court then engaged Schultz in a short colloquy during which Schultz confirmed that the
government’s version of events was accurate, that he had driven a vehicle while under the
influence of alcohol, and that he was guilty of the offense charged.1 The Court accepted
his plea of guilty, and ordered that a presentence report be prepared. Schultz was
released under supervision.
The District Court held a sentencing hearing on April 25, 2013. The Court began
by observing that, because of the nature of Schultz’s regulatory violation, it was
necessary to consider the sentencing factors set forth in 18 U.S.C. § 3553(a) but that the
1
The entirety of the colloquy proceeded as follows:
THE COURT: Mr. Schultz, have you listened carefully, and
do you substantially agree with that information [provided by
the government]?
MR. SCHULTZ: Yes, sir.
THE COURT: So let me ask you more particularly, were you
driving that vehicle that was mentioned that day under the
influence of alcohol?
MR. SCHULTZ: Yes, sir.
THE COURT: And you understand the blood alcohol level
that they had determined by the breathalyzer was above the
legal limit of .08, is that right?
MR. SCHULTZ: Yes, sir.
THE COURT: So let me ask you, . . . how do you plead to
driving with a blood alcohol level above .08?
MR. SCHULTZ: Guilty.
(App. at 23.)
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Sentencing Guidelines were inapplicable to his case. Counsel then presented argument
regarding Schultz’s personal characteristics and history, ranging from his prior criminal
convictions and long history of substance abuse to his military service and ongoing
familial obligations to his two-year-old daughter, as well as the circumstances
surrounding his operation of the vehicle while intoxicated. Schultz apologized for his
conduct and asked not to be imprisoned and taken away from his young daughter.
Ultimately, the District Court sentenced Schultz to two months in prison, a term of
sentence four months below the statutory maximum. In arriving at this sentence, the
Court stated that it had considered the § 3553(a) sentencing factors and the presentation
by Schultz’s counsel. In addition, it explicitly relied on Schultz’s lengthy criminal
record, which involved 10 convictions for various crimes, including serious offenses such
as attempted burglary and assault; his four-decades-long history of marijuana use; the fact
that he tested positive for marijuana shortly after his initial arrest and release in this case,
(although subsequent presentencing drug tests were negative and he had otherwise
complied with the conditions of his supervision); and the anger issues noted by the
Probation Office and displayed during the sentencing hearing when he made “pretty
vehement” gestures toward his girlfriend because the couple’s daughter was making
noise in the courtroom. (App. at 51.) This appeal followed.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
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Under Anders v. California, if appellate counsel “finds his case to be wholly
frivolous, after a conscientious examination of it, he should so advise the court and
request permission to withdraw. That request must, however, be accompanied by a brief
referring to anything in the record that might arguably support the appeal.” 386 U.S. at
744. “The Court’s inquiry when counsel submits an Anders brief is thus twofold:
(1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an
independent review of the record presents any nonfrivolous issues.” United States v.
Youla, 241 F.3d 296, 300 (3d Cir. 2001). With respect to the first requirement, counsel
submitting an Anders brief must (1) “satisfy the court that counsel has thoroughly
examined the record in search of appealable issues,” and (2) “explain why the issues are
frivolous.” Id.; see also United States v. Marvin, 211 F.3d 778, 780-81 (3d Cir. 2000).
Counsel is not obligated to “raise and reject every possible claim,” but his or her brief
must meet the “conscientious examination” standard. Youla, 241 F.3d at 300. When
performing the second step of our inquiry, “we confine our scrutiny to those portions of
the record identified by an adequate Anders brief.”2 Id. at 301.
Counsel for Schultz has engaged in the thorough and conscientious review of the
record required by Anders and has submitted an adequate brief in support of his motion to
withdraw. From the necessarily small record of the limited proceedings before the
District Court, counsel has identified three potential issues for appeal: (1) whether there
2
Schultz did not file a pro se brief in response to his attorney’s motion to
withdraw under Anders, which he would have been permitted to do. 3d Cir. L.A.R.
109.2(a).
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was a sound legal and factual foundation for the Court to punish Schultz’s conduct;
(2) whether Schultz’s guilty plea was knowing and voluntary; and (3) the reasonableness
of Schultz’s sentence. Counsel summarized the legal authority applicable to each claim,
comprehensively addressed the relevant record evidence, and found each claim to lack
arguable merit.
Based on our independent review of the record we reach the same conclusion.
First, there is no dispute that Schultz’s operation of a vehicle while under the influence of
alcohol occurred in a national recreation area, which violated 36 C.F.R. § 4.23(a)(2). The
Secretary of the Interior was authorized to promulgate that regulation under 16 U.S.C.
§ 3, and the District Court had jurisdiction over violations of the regulation pursuant to 18
U.S.C. § 3231. Accordingly, there can be no meritorious challenge to the Court’s
jurisdiction, the lawfulness of the regulation, or application of the regulation to Schultz’s
operation of a vehicle.
Second, we agree that any challenge to the voluntariness of Schultz’s plea would
be frivolous. In its plea colloquy with Schultz, the District Court confirmed the facts
underlying the charged offense. It failed, however, to provide some of the customary
admonitions and warnings to ensure that a guilty plea is knowing and voluntary. These
include a warning that, by virtue of a guilty plea, the defendant waives the privilege
against compulsory self-incrimination, the right to trial, and the right to confront one’s
accusers. See Fed. R. Crim. P. 11; Boykin v. Alabama, 395 U.S. 238, 242-44 (1969).
Normally, before it accepts a guilty plea, a district court must make certain that the
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defendant understands his rights and the consequences of pleading guilty and still desires,
of his own volition, to so plead. United States v. Schweitzer, 454 F.3d 197, 202-03 (3d
Cir. 2006).
Schultz did not object to the sufficiency of the plea colloquy before the District
Court and, at no point, has he sought to withdraw his guilty plea. Any challenge to his
conviction based on the voluntariness of his plea is, therefore, subject to plain error
review. United States v. Vonn, 535 U.S. 55, 58-59 (2002); United States v. Corso, 549
F.3d 921, 928-29 (3d Cir. 2008). To succeed under this standard, Schultz must
demonstrate, among other things, that, but for the Court’s error, there is a “reasonable
probability that . . . he would not have entered the plea.” United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004); Corso, 549 F.3d at 929. There is nothing in the record,
and we have been presented with no extra-record evidence or even argument, suggesting
that Schultz would have declined to plead guilty had a more extensive colloquy been
conducted.
Finally, the District Court did not commit error in fashioning its sentence. We
review a sentence first for procedural and then substantive reasonableness. United States
v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). A substantively reasonable
sentence must be based on a “rational and meaningful consideration of the factors
enumerated in 18 U.S.C. § 3553(a)” given the totality of the circumstances. United
States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc). When assessing the
substantive reasonableness of a sentence, we apply the deferential abuse of discretion
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standard of review and will affirm “unless no reasonable sentencing court would have
imposed the same sentence on that particular defendant for the reasons the district court
provided.” Tomko, 562 F.3d at 567-68.
Here, the District Court heard argument from counsel and a statement from
Schultz, both of which bore on Schultz’s characteristics and history and the
circumstances of his offense, relevant considerations under § 3553(a). The Court
thoroughly reviewed the facts that it found particularly salient, including Schultz’s long
criminal record and history of drug abuse, his mixed success under pre-trial supervision,
and his apparent anger issues, settling on a sentence far below the statutory maximum.
That sentence was well within the bounds of reason, and any substantive attack on it
would lack arguable merit.
III.
For the foregoing reasons, we will affirm the judgment of sentence and grant
counsel’s motion to withdraw. We also conclude, pursuant to Third Circuit Local
Appellate Rule 109.2(b), that the issues presented in this appeal lack legal merit for the
purposes of counsel filing a petition for a writ of certiorari in the Supreme Court of the
United States.
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