NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT




                       No. 08-4578




            UNITED STATES OF AMERICA

                            v.

              RICHARD W. HERNANDEZ,
                              Appellant




      On Appeal from the United States District Court
          for the Middle District of Pennsylvania
            (D.C. Crim. No.1-08-cr-00164-001)
        District Judge: Hon. William W. Caldwell


        Submitted Under Third Circuit LAR 34.1(a)
                      July 2, 2010

Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges

                   (Filed: July 2, 2010)




                        OPINION
SLOVITER, Circuit Judge.

       Richard Hernandez appeals his convictions and sentence for three counts of armed

bank robbery in violation of 18 U.S.C. § 2113(a), (d), and one count of brandishing a

firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Counsel

for Hernandez has moved to withdraw and has accordingly filed an Anders brief,

asserting that there are no non-frivolous issues for appeal. See Anders v. California, 

, 744 (1967). We will affirm and grant counsel’s motion to withdraw.

                                             I.

       On two dates in 2008, Hernandez and a co-defendant robbed three federally

insured banks, obtaining $25,505. During the robberies, Hernandez carried a semi-

automatic gun, pointing it at at least one bank teller. After being identified and

apprehended, both defendants admitted participating in the robberies. They were charged

with three counts of armed bank robbery under 18 U.S.C. § 2113(a), (d), aiding and

abetting armed bank robbery under 18 U.S.C. § 2, using a firearm during a crime of

violence under 18 U.S.C. § 924(c)(1)(A)(ii), and conspiring to commit armed bank

robbery under 18 U.S.C. § 371. Hernandez alone was charged with possession of a stolen

firearm under 18 U.S.C. §§ 922(j) and 924(a)(2).

       Counsel was appointed to represent Hernandez. Hernandez entered into a plea

agreement by which he pled guilty to three counts of armed bank robbery, as well as a

count of brandishing a firearm during a crime of violence, and the government agreed to



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dismiss the remaining counts. Count IV, brandishing a firearm during a crime of

violence, carries a statutory mandatory minimum sentence of eighty-four months

imprisonment that is to run consecutively to any other term of imprisonment. Notably,

Hernandez’ counsel asserts that, during the plea bargaining, the government threatened to

prosecute Hernandez for two additional counts under 18 U.S.C. § 924(c), convictions

which would have exposed him to an additional fifty years of imprisonment.

      The District Court accepted Hernandez’ guilty plea as “voluntary and informed”

after a colloquy pursuant to Federal Rule of Criminal Procedure 11. App. at 53a. The

presentence report (“PSR”) recommended a Guideline range of 272 to 319 months

imprisonment. Neither Hernandez nor the government objected to the PSR.

      At sentencing, the District Court, discussing the factors under 18 U.S.C. § 3553(a)

as well as Hernandez’ individual circumstances, imposed a sentence of 224 months –

forty-eight months below the PSR Guideline computation. Counsel filed a Notice of

Appeal and made the present motion to withdraw as counsel.1

                                           II.

      At times, a defense counsel may be faced with conflicting responsibilities to




                   1
                     The District Court had jurisdiction under 18 U.S.C. §
            3231, and we have jurisdiction under 28 U.S.C. § 1291 and 18
            U.S.C. § 3742. We exercise plenary review of questions of law,
            and apply a clearly erroneous standard to the District Court’s
            findings of fact. United States v. Queensborough, 

,
            156 (3d Cir. 2000).

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support his or her client to the best of his or her ability, on the one hand, and, on the other

hand, to avoid frivolous appeals. 

. Under Anders, if a counsel for

a defendant finds an appeal to be “wholly frivolous, after a conscientious examination of

[the case], he should so advise the court and request permission to withdraw.” 

must be accompanied by “a brief referring to anything in the record that might

arguably support the appeal.” 

inquiry by the court is twofold. First, the court must determine whether

counsel adequately fulfilled the requirements of Third Circuit Local Appellate Rule

109.2(a) which states, in relevant part:

       Where, upon review of the district court record, counsel is persuaded that
       the appeal presents no issue of even arguable merit, counsel may file a
       motion to withdraw and supporting brief pursuant to Anders v. California,
       

(1967), which must be served upon the appellant and the
       United States.

3d Cir. L.A.R. 109.2(a) (2010).

       An adequate Anders brief: (1) “satisf[ies] the court that counsel has thoroughly

examined the record in search of appealable issues,” United States v. Youla, 

, 300 (3d Cir. 2001); (2) identifies any “issue[s] arguably supporting the appeal even

though the appeal was wholly frivolous,” Smith v. Robbins, 

, 285 (2000);

and (3) “explain[s] why the issues are frivolous.” United States v. Marvin, 

,

780 (3d Cir. 2000).

       Second, the court must determine “whether an independent review of the record



                                               4
presents any nonfrivolous issues.” 

. “An appeal on a matter of law

is frivolous where none of the legal points are arguable on their merits.’” 

(quoting Neitzke v. Williams, 

, 325 (1989)) (internal brackets omitted).

       We find counsel’s Anders brief to be adequate, as it identifies the only appealable

issues, and explains why each of these issues would be a frivolous ground for appeal.

The Anders brief moreover discusses the plea hearing, notes that our review of the guilty

plea acceptance is for plain error and that, in any event, the District Court complied with

Federal Rule of Criminal Procedure 11, as Hernandez’ plea was knowing, voluntary and

intelligent.

       Next, the Anders brief discusses the deference we owe district courts’ sentencing

decisions under Gall v. United States, 

, 51 (2007), and United States v. Wise,

, 216-217 (3d Cir. 2008), and concludes that the District Court here imposed

a sentence that was neither “procedurally deficient [n]or substantively unreasonable,”

Appellant’s Br. at 16.

       Finally, counsel advances another issue arguably supporting an appeal, which is

related to the plea bargaining process, i.e., the government’s “threat” to prosecute

Hernandez for additional § 924(c) violations. Although the threat may well have weighed

heavily on the plea negotiations, counsel’s brief explains that such a practice by the

government is not improper. See Bordenkircher v. Hayes, 

, 364 (1977).

       The Anders brief will guide our review because it is adequate and because



                                              5
Hernandez filed no pro se brief. There is no non-frivolous issue pertaining to jurisdiction.

18 U.S.C. § 3231 provides district courts with original jurisdiction over “all offenses

against the laws of the United States.” Hernandez was indicted for violating several

statutes of the United States.

       There is no non-frivolous issue with regard to plea validity. To be valid, a guilty

plea must be knowing and voluntary. See Boykin v. Alabama, 

, 242 (1969).

Before accepting a guilty plea, district courts must:

       advise the defendant, inter alia, of 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, 

, 202-203 (3d Cir. 2006) (quoting Fed. R. Crim.

P. 11(b)(1)). The District Court met these requirements, and the record leaves no doubt

that Hernandez understood the consequences of his plea and that he entered his plea

voluntarily.

       Nor is there any non-frivolous issue related to the reasonableness of the sentence.

We review the District Court’s sentence for abuse of discretion. 

.

We must first “ensure that the [D]istrict [C]ourt committed no significant procedural error

in arriving at its decision, ‘such as failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a)



                                               6
factors, selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence-including an explanation for any deviation from the

Guidelines range.’” 

(quoting 

). If we discern

no procedural error, we must then “review the substantive reasonableness of the sentence

under an abuse-of-discretion standard, regardless of whether it falls within the Guidelines

range.” 

(citing 

). “The touchstone of reasonableness is

whether the record as a whole reflects rational and meaningful consideration of the

factors enumerated in 18 U.S.C. § 3553(a).” United States v. Grier, 

, 571

(3d Cir. 2007) (en banc) (internal quotations omitted).

         Hernandez’ sentence is procedurally reasonable. The District Court recognized

that it was not bound by the Guidelines and imposed a sentence below the Guidelines

suggested range. It moreover provided an adequate explanation for its deviation. The

District Court considered Hernandez’ personal history and circumstances, as well as the

seriousness of the crime, Hernandez’ recidivist nature, and the need for deterrence and

public safety. Nor would we have any basis on which to find an abuse of discretion in the

District Court’s substantive sentence, which was forty-eight months below the Guideline

range.

         The final issue arguably supporting an appeal involving the plea bargain lacks

merit. Under Bordenkircher, the government may confront a defendant with the

possibility of more severe punishment during plea 

. This



                                              7
practice is part of the “give-and-take” of plea bargaining. 

Furthermore, the

evidence against Hernandez was overwhelming as to the two additional § 924(c)

violations, and it is likely that he would have been convicted on those counts. We can

therefore distinguish this case from those in which additional counts are unfairly

threatened against a defendant, thereby inducing or compelling an involuntary guilty plea.

                                            III.

       For the above-stated reasons, we agree with counsel that no non-frivolous issues

for appeal exist in this case. Accordingly, we will affirm the District Court’s judgment

and grant counsel’s motion to withdraw.




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