NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-2598
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UNITED STATES OF AMERICA
v.
RASHEED WISE,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-16-cr-00576-001)
District Judge: Honorable Joseph H. Rodriguez
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Submitted Under Third Circuit L.A.R. 34.1(a)
March 22, 2018
Before: SMITH, Chief Judge, HARDIMAN, and BIBAS, Circuit Judges.
(Filed: March 23, 2018)
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OPINION *
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge.
Rasheed Wise appeals his judgment of sentence. Because Wise waived his right to
appeal and there are no nonfrivolous issues for appeal, we will grant his counsel’s motion
to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and dismiss the
appeal.
I
Wise pleaded guilty to one count of conspiracy to distribute and possess with
intent to distribute cocaine in violation of 21 U.S.C. § 846. Although Wise’s offense level
was 29, the Government agreed not to oppose a downward variance if he was sentenced
between 100 and 125 months’ imprisonment (the range applicable to an offense level of
24 and a criminal history category of VI). In return, Wise agreed not to file any appeal,
collateral attack, or other writ or motion if his sentence fell within or below that range.
Wise pleaded guilty in the United States District Court for the District of New
Jersey to the one-count Information described in the plea agreement. The District Court
engaged in a colloquy with Wise under Rule 11 of the Federal Rules of Criminal
Procedure, and ensured that he understood the rights he would be waiving by pleading
guilty, the specific stipulations in the plea agreement, and the appellate waiver provision
contained in the plea agreement. After establishing a sufficient factual basis for the plea
and concluding that it was knowingly and voluntarily made, the District Court accepted
Wise’s guilty plea.
2
Although the Probation Office calculated Wise’s advisory Guidelines range at
151–188 months’ imprisonment, the District Court varied downward, sentencing Wise to
100 months’ imprisonment and three years of supervised release. Wise filed this appeal,
and his counsel moved to withdraw under Anders. Wise has not submitted a pro se brief.
II 1
When appointed counsel finds his client’s appeal to be “wholly frivolous,” “he
should so advise the court and request permission to withdraw.” Anders, 386 U.S. at 744.
We then consider whether: (1) “counsel adequately fulfilled the [Anders] requirements,”
and (2) “an independent review of the record presents any nonfrivolous issues.” United
States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).
To meet the first prong, counsel must thoroughly examine the record in search of
appealable issues and explain why they are frivolous. 3d Cir. L.A.R. 109.2(a). “[C]ounsel
need not discuss every possible issue,” but must assure the Court that “no further
discussion of other areas of the case is necessary.” United States v. Marvin, 211 F.3d 778,
780–81 (3d Cir. 2000) (quoting United States v. Tabb, 125 F.3d 583, 585 (7th Cir.
1997)).
Here, counsel’s brief meets this standard, and an independent review of the record
reveals no nonfrivolous issues. Counsel examined the record in search of appealable
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We exercise plenary review to determine
whether the record presents any nonfrivolous issues. Simon v. Gov’t of V.I., 679 F.3d 109,
114 (3d Cir. 2012).
3
issues. After noting the appellate waiver, counsel states that he examined the guilty plea
colloquy transcript, the sentencing transcript, the plea agreement, the draft and final PSR,
the judgment, and the Rule 11 Application for Permission to Enter a Guilty Plea before
concluding that there were no nonfrivolous issues for appeal. Counsel’s brief explains
that Wise knowingly and voluntarily pleaded guilty in a written plea agreement. Counsel
further notes that the sentence imposed was within the agreed-upon Guidelines range and
there were no unresolved sentencing issues. For these reasons, the brief concludes that
there is no nonfrivolous basis to challenge the reasonableness of Wise’s sentence.
Counsel’s Anders brief is therefore sufficient, and we will proceed to consider whether
the appellate waiver is enforceable.
“If done knowingly and voluntarily, a statutorily created right to appeal is
generally held to be waiveable.” United States v. Khattak, 273 F.3d 557, 561 (3d Cir.
2001). We agree with counsel that Wise’s appellate waiver was both knowing and
voluntary. The waiver states, in relevant part:
Rasheed Wise knows that he has and, except as noted below in this
paragraph, voluntarily waives, the right to file any appeal, any collateral
attack, or any other writ or motion, including but not limited to an appeal
under 18 U.S.C. § 3742 or a motion under 28 U.S.C. § 2255, which
challenges the sentence imposed by the sentencing court if that sentence
falls within or below the Guidelines range that results from the total
Guidelines offense level of 24.
App. 20. As mentioned, the District Court sentenced Wise to 100 months’ imprisonment,
which is at the bottom of the Guidelines range that results from an offense level of 24 and
a criminal history category of VI. See USSG Ch. 5, Pt. A (Sentencing Table).
4
The District Court engaged in a thorough colloquy at the change of plea hearing,
asking Wise: “Do you understand that as set forth in your plea agreement, you have
waived the right to file any appeal, collateral attack or any other writ or motion . . . if that
sentence falls within or below the guideline range that results from a total guidelines
offense level of 24?” App. 44. Wise responded, “Yes.” Id. The Court then asked: “Do
you understand that your plea agreement only allows you to challenge your sentence if
the Court imposes a prison term above those ranges or to challenge the Court’s
determination of your criminal history category?” Id. Wise again responded, “Yes.” Id.
The plea colloquy shows that Wise knowingly and voluntarily waived his right to appeal.
* * *
For the foregoing reasons, we will grant counsel’s motion to withdraw and dismiss
Wise’s appeal. Counsel also is relieved of any obligation to file a petition for writ of
certiorari in the Supreme Court. 3d Cir. L.A.R. 109.2(b).
5