NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 23-1112
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UNITED STATES OF AMERICA
v.
ANTHONY GATLING,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-21-cr-00020-001)
U.S. District Judge: Honorable Chad F. Kenney
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Submitted Under Third Circuit L.A.R. 34.1(a)
October 6, 2023
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Before: SHWARTZ, MATEY, and FISHER, Circuit Judges.
(Filed: October 11, 2023)
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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.
SHWARTZ, Circuit Judge.
Anthony Gatling appeals his conviction and sentence for possession of a firearm
by a convicted felon. Because there are no nonfrivolous issues warranting review, we
will grant his counsel’s motion under Anders v. California, 386 U.S. 738 (1967), and
affirm.
I
Law enforcement searched Gatling’s home and found two firearms and
ammunition. At the time of the search, Gatling had a prior felony conviction in New
York for attempted criminal possession of a weapon in the second degree. Thereafter,
Gatling was charged with, and entered a guilty plea to, possessing a firearm as a
convicted felon, in violation of 18 U.S.C. § 922(g)(1).
At sentencing, the District Court adopted the Presentence Investigation Report’s
(“PSR”) Guidelines range of twelve to eighteen months’ imprisonment. The Government
requested a sentence within the Guidelines range, while Gatling requested a variance
based on the 18 U.S.C. § 3553(a) factors to enable him to receive a sentence of home
detention rather than imprisonment. The District Court imposed a sentence of one day’s
imprisonment and three years’ supervised release, which included a term of six months’
home detention with various exceptions including allowing Gatling to work. 1
Gatling appeals, and his counsel has moved to withdraw under Anders.
1
The District Court also imposed a fine of $2,500 and a special assessment of
$100.
2
II 2
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 Circuit L.A.R. 109.2(a).
When counsel submits an Anders brief, we must determine: “(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) (citing United States v. Marvin, 211 F.3d 778, 780 (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,
486 U.S. 429, 438 n.10 (1988). 3
To determine whether counsel has fulfilled her obligations, we examine the
2
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The District Court
transferred jurisdiction over Gatling’s supervised release to the United States District
Court for the Northern District of Ohio, which accepted such jurisdiction under 18 U.S.C.
§ 3605 after Gatling’s sentencing. See United States v. Gatling, 4:23-cr-00204, ECF No.
5 (N.D. Ohio Apr. 14, 2023). We are not, however, deprived of jurisdiction because this
appeal requires us to evaluate Gatling’s conviction and sentence, which occurred before
the case was transferred. See United States v. Lall, No. 3:20-cr-00223, 2023 WL
4045139, at *2 (D.N.J. June 16, 2023) (explaining that while 18 U.S.C. § 3605 grants the
transferee court certain powers over the defendant’s supervised release, “[n]othing in the
relevant statutory scheme supports the conclusion that [it] is the appropriate forum to
hear [the d]efendant’s challenges to his conviction and the imposition of his sentence.”);
cf. United States v. Caicedo, 341 F. App’x 403, 403-04 (10th Cir. 2009)
(nonprecedential) (stating that arguments relating to matters before a § 3605 transfer
remained with the original court).
3
We exercise plenary review to determine whether there are any nonfrivolous
issues for appeal. Penson v. Ohio, 488 U.S. 75, 80-83, 83 n.6 (1988).
3
Anders brief to see if it (1) shows that she has thoroughly examined the record in search
of appealable issues, identifying those that arguably support the appeal even if “wholly
frivolous,” Smith v. Robbins, 528 U.S. 259, 285 (2000), and (2) explains why those
issues are frivolous, Marvin, 211 F.3d at 780-81. If counsel satisfies these requirements,
“then we may limit our review of the record to the issues counsel raised.” United States
v. Langley, 52 F.4th 564, 569 (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 one potentially nonfrivolous issue: the
reasonableness of Gatling’s sentence. 4 Second, the brief explains why any challenge to
the sentence would be frivolous under the governing law. Therefore, counsel’s brief is
sufficient, and there are no nonfrivolous issues warranting an appeal. 5
B
Gatling’s sentence is procedurally and substantively reasonable. The District
Court followed United States v. Gunter’s three-step procedure, which requires that a
district court (1) calculate the applicable Guidelines range, (2) consider departure
4
Because Gatling pled guilty, his appellate issues were limited to the District
Court’s jurisdiction, the voluntariness of his plea, and the reasonableness of his sentence.
United States v. Broce, 488 U.S. 563, 569 (1989). Counsel appropriately did not raise
arguments regarding the Court’s jurisdiction or the voluntariness of Gatling’s plea
because such arguments would be plainly frivolous. The District Court had jurisdiction
pursuant to 18 U.S.C. § 3231, and a review of the plea colloquy shows that Gatling’s
guilty plea was voluntary and knowing in compliance with the Constitution and Federal
Rule of Criminal Procedure 11.
5
Gatling has not filed a pro se brief identifying additional issues despite having
the option to do so.
4
motions, and (3) meaningfully consider all relevant § 3553(a) factors. 462 F.3d 237, 247
(3d Cir. 2006). 6 Here, the District Court first identified the applicable sentencing
guideline and correctly calculated the Guidelines range. 7 Second, there were no
departure motions. Third, the Court addressed the § 3553(a) factors, balancing the
seriousness of Gatling’s conduct and his prior conviction against mitigating factors, such
as Gatling’s difficult upbringing, employment, and minimal criminal history. It thus gave
“rational and meaningful consideration” to the § 3553(a) factors. United States v.
Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc) (quoting United States v. Grier, 475
F.3d 556, 571 (3d Cir. 2007) (en banc). The Court therefore complied with Gunter and
imposed a procedurally reasonable sentence.
Gatling’s sentence was also substantively reasonable. 8 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.” Id. As
to the term of imprisonment, the District Court imposed a one-day sentence. While this
is well below the Guidelines range, we cannot conclude that no judge would have
imposed such a sentence under the facts of this case. The length and conditions of
6
Because Gatling did not raise any procedural objections at sentencing, we review
the procedural reasonableness of his sentence for plain error. See United States v. Flores-
Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc).
7
The District Court adopted the PSR’s Guidelines range, which accurately
calculated a range of twelve to eighteen months’ imprisonment based on the total offense
level of twelve and criminal history category of II. The total offense level captured
Gatling’s acceptance of responsibility for his actions.
8
We review the substantive reasonableness of a sentence for abuse of discretion.
Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Azcona-Polanco, 865 F.3d
148, 151 (3d Cir. 2017).
5
Gatling’s supervised release are also reasonable. The District Court considered the
relevant statutory factors and concluded that supervised release, including a term of home
detention, was warranted given his offense, lack of criminal history, conduct after being
charged, and employment. Gatling’s view that his compliance with the conditions of his
pretrial release and acceptance of responsibility should have further reduced any
supervised release conditions does not make the sentence unreasonable. 9 Thus, any
challenge to the substantive reasonableness of Gatling’s sentence would lack merit.
III
For the foregoing reasons, we will grant counsel’s motion to withdraw and affirm.
9
Gatling is permitted to work, but according to his counsel, Gatling wishes to
modify the conditions of his home detention so that he can work overtime. At
sentencing, the District Court instructed Gatling that any desired exceptions to those
conditions should be raised with the probation office in the district court overseeing his
supervised release. To the extent that the probation office does not authorize an
exception, Gatling may make an application to that court under 18 U.S.C. § 3583.
6