NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      ____________

                           No. 10-1810
                          ____________

                UNITED STATES OF AMERICA

                                v.

                        JOSEPH AITORO,

                                    Appellant.
                          ___________

          On Appeal from the United States District Court
                    for the District of New Jersey
              (D.C. Criminal No. 1:08-cr-00852-001)
           District Judge: Honorable Jerome B. Simandle
                            ___________

            Submitted Under Third Circuit LAR 34.1(a)
                       November 19, 2010

Before:   BARRY, CHAGARES, and VANASKIE, Circuit Judges.

                    (Filed: December 8, 2010)
                          ___________

                   OPINION OF THE COURT
                        ___________
VANASKIE, Circuit Judge.
    Joseph Aitoro (“Aitoro”) appeals his sentence imposed after he pleaded no contest

to a violation of supervised release. Aitoro’s counsel has moved for permission to

withdraw from representation, and has filed a brief pursuant to Anders v. California, 

(1967), and Third Circuit Local Appellate Rule (“LAR”) 109.2(a), certifying the

absence of any issues with arguable merit. We have jurisdiction under 28 U.S.C.         1291

and 18 U.S.C. § 3583(e). For the reasons that follow, we will grant counsel’s motion to

withdraw and affirm Aitoro’s sentence.

                                             I.

       This matter arises out of the revocation of Aitoro’s supervised release following

the completion of his prison term on convictions on two counts of illegal possession of a

firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and

two counts of possession with intent to distribute a controlled substance, in violation of

21 U.S.C. § 841(b)(1)(B). Aitoro was sentenced to four concurrent sentences, one for

each count of conviction, in the District of Massachusetts. He was released from custody

and began his court-ordered term of supervised release on November 5, 2007.

Jurisdiction over Aitoro’s supervised release was transferred to the District of New Jersey

on November 19, 2008.

On August 2, 2009, Aitoro was arrested in Toms River, New Jersey, and charged with

terroristic threats and possession of a weapon for an unlawful purpose. On August

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4, 2009, the United States Probation Office filed a petition for an arrest warrant for Aitoro

based on a single violation of supervised release. Aitoro was arrested on September 10,

2009, in Mattapan, New Jersey. An Amended Petition, charging seven additional

violations, was filed on March 10, 2010.

       On March 12, 2010, Aitoro pleaded no contest, pursuant to an oral agreement with

the Government, to one of the eight violations alleged in the Amended Petition. The

Government agreed to the dismissal of the remaining violations, and the parties agreed to

recommend a sentence of 24 months’ imprisonment with no additional supervised release.

(A. 56-58.)

       Aitoro faced a maximum of 96 months’ imprisonment, and his recommended

Guidelines range was 18 to 24 months’ imprisonment. (A. 43, 55-57.) Aitoro sought a

sentence within the Guidelines range with no additional term of supervised release so that

he could focus his efforts on defending himself against pending state charges, and the

Government sought a sentence of 24 months’ imprisonment with no additional term of

supervision. (A. 76-77, 88.) The District Court adopted the Government’s

recommendation as to the term of imprisonment, but imposed a one-year term of

supervised release, finding that this punishment was “sufficient but not greater than

necessary to redress Mr. Aitoro’s breach of trust with the probation department.” (A. 91.)

This appeal followed, with counsel for Aitoro now seeking leave to withdraw in

accordance with the dictates of Anders.

                                             II.



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          We exercise plenary review in ascertaining, after a complete assessment of the

proceedings, whether an appeal is wholly frivolous. In this regard, our inquiry is twofold.

First, we must determine whether counsel has adequately fulfilled the obligations

imposed by LAR 109.2(a). United States v. Youla, 

, 300 (3d Cir. 2001).

Second, we must confirm, after an independent review of the record, that the appeal does

not present any non-frivolous issues. 

the requirement of LAR 109.2(a) by (1) satisfying “the court that

counsel has thoroughly examined the record in search of appealable issues,” and (2)

explaining why the issues are frivolous. 

Anders brief appears adequate on

its face, we limit our scrutiny to those parts of the record identified in the brief, as well as

any issues asserted by the appellant in a pro se brief.1 

          Counsel presents three arguably non-frivolous issues and explains why each issue

is without merit. As counsel points out, following an unconditional plea of guilty, a

defendant is generally limited to three appealable issues: (1) the district court’s power to

enter the conviction or impose the sentence, (2) the validity of his or her plea, and (3) the

reasonableness and legality of his or her sentence. See United States v. Broce, 

, 569 (1989) (following unconditional guilty plea a defendant may only challenge

validity of the plea or the court’s jurisdiction); Menna v. New York, 

, 62 n.2,




1
    Aitoro was advised by the Court of his right to file a pro se brief, but has elected not to

do so. Our review, therefore, is confined to the portions of the record identified in

counsel’s Anders brief.
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63 (1975) (per curiam) (valid guilty plea waives preceding constitutional errors unless

related to court’s authority to “hal[e] a defendant into court on a charge”); 18 U.S.C. §

3742(a) (providing appellate court authority to review sentences).

         First, counsel argues that the district court’s jurisdiction properly arose under 18

U.S.C. § 3583(e) because the defendant was charged with violating the terms of

supervised release. Aitoro has never disputed the jurisdiction of the court. We agree that

any argument challenging the court’s jurisdiction is without merit.

         Second, counsel argues that there is no basis for challenging the validity of

Aitoro’s plea. In this regard, it is clear that the revocation proceedings complied with

Federal Rule of Criminal Procedure 32.1. Aitoro was fully advised of his rights,

including his rights to counsel, to remain silent, to testify on his own behalf, and to

confront the government witnesses through cross examination, as well as the charges

against him. He was also fully informed of the government’s burden of proof and the

maximum prison term for the alleged violations of supervised release. As to each matter,

Aitoro indicated that he understood his rights and that he was pleading no contest of his

own free will. (A. 61-69.) Counsel further points out that, under 18 U.S.C. § 3673(1), a

plea of nolo contendere has the same legal effect as a plea of guilty. Finally, because he

pleaded no contest, the district court established a factual basis for his plea through a

government proffer. (A. 71-73.) We agree that, in light of the thorough colloquy

conducted by the able District Judge, any argument challenging Aitoro’s plea is without

merit.



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       Third, counsel argues that Aitoro’s sentence is reasonable and legal. The District

Court imposed a sentence of six months’ imprisonment on each of the four revocations, to

be run consecutively, for an aggregate sentence of 24 months’ imprisonment, and one

year of supervised release. This sentence was within the Guidelines range and was

pursuant to the court’s authority under 18 U.S.C. § 3583(e)(3) to revoke a term of

supervised release and impose a new term of imprisonment. For the sentence to be

reasonable, the record must disclose that the District Court “gave meaningful

consideration to the [18 U.S.C.] § 3553(a) factors,” and “reasonably applied [those

factors] to the circumstances of the case.” United States v. Cooper, 

, 329,

330 (3d Cir. 2006), abrogated on other grounds by Kimbrough v. United States, 

(1987). Aitoro, as the appellant, bears the burden of demonstrating that his sentence is

unreasonable. See 

Aitoro’s counsel asserts, and our independent review of the

record confirms, that the District Court meaningfully considered and reasonably applied

the Section 3553(a) factors. Therefore, we find any argument challenging Aitoro’s

sentence to be frivolous as well.

       We are satisfied that counsel has conducted a thorough examination of the record

and fulfilled the requirements of LAR 109.2(a). Finally, after our independent review of

the record, we have been unable to discern any non-frivolous issues to be asserted on

appeal. Accordingly, we will affirm the District Court’s judgment of March 17, 2010,

and grant counsel’s motion to withdraw.




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