United States of America v. Robert Pacheco

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-3427
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UNITED STATES OF AMERICA
v.
ROBERT PACHECO,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 1:19-cr-00082-013)
District Judge: Honorable Christopher C. Conner
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Submitted Under Third Circuit L.A.R. 34.1(a)
October 24, 2023
Before: KRAUSE, FREEMAN, and MONTGOMERY-REEVES, Circuit Judges.
(Filed: February 1, 2024)
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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.

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Montgomery-Reeves, Circuit Judge.
In 2022, Robert Pacheco admitted that he violated the terms of his supervised
release, and the District Court sentenced him to 14-months imprisonment and two years
of supervised release. Pacheco appealed. Pacheco’s appointed counsel (“Counsel”) now
seeks to withdraw under Anders v. California, 386 U.S. 738 (1967). Because we agree
that Pacheco’s appeal lacks any issue of arguable merit, we will grant the motion to
withdraw.
I. BACKGROUND
In 2021, Pacheco pleaded guilty to a distribution-of-heroin charge, received a
sentence below the applicable sentencing range under the Federal Sentencing Guidelines
(the “Guidelines”) for time served, and began a three-year term of supervised release. In
November 2022, the probation office initiated revocation proceedings based on reports
that Pacheco violated the terms of his supervised release. At the final revocation hearing,
Pacheco confirmed that he reviewed the petition for revocation with Counsel and
understood the charged violations and the sentencing range for his violations. Pacheco
admitted to multiple violations, which included “the unauthorized use of a vehicle,
driving without a license, the failure to go to the substance abuse assessments, [and]
failure to make appropriate reporting of contact with law enforcement[.]” App. 60.
During his allocution, Pacheco apologized and acknowledged that he “messed up.” App. 61.
Pacheco then requested to be released on an ankle monitor. To support his request, Pacheco
cited to his five-year sobriety from heroin, his year-long employment, and his experience

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with wearing an ankle monitor. The government opposed this request and argued for a
sentence at the top of the applicable Guidelines range.
The District Court denied Pacheco’s request and sentenced him at the top of the
applicable Guidelines range. App. 62. The District Court explained that Pacheco’s “sheer
number of violations demonstrates a certain amount of incorrigible behavior” that required a
sentence at the top of the applicable Guidelines range. Id. Pacheco timely filed a notice of
appeal. Then, Pacheco’s Counsel filed the instant motion to withdraw from representation.
II. DISCUSSION1
When, after reviewing 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, 386 U.S. 738 (1967).” 3d Cir.
L.A.R. 109.2(a). In considering the motion, we must determine: “(1) whether counsel’s
brief in support of [his] motion fulfills the requirements of L.A.R. 109.2(a); and
(2) whether an independent review of the record presents any non-frivolous issues.”
United States v. Langley, 52 F.4th 564, 569 (3d Cir. 2022).
An Anders brief fulfills the requirements of Rule 109.2(a) if it shows that counsel
“has thoroughly examined the record in search of appealable issues” and “explains why
those issues are frivolous.” Id. Counsel’s brief identifies four potentially appealable
issues: (1) the District Court’s proper exercise of jurisdiction and its authority to revoke
1 This Court has jurisdiction under 28 U.S.C. § 1291. The District Court had jurisdiction
under 18 U.S.C. § 3231.

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Pacheco’s supervised release; (2) Pacheco’s record admissions that he violated the
conditions of his release multiple times, demonstrating that sufficient evidence existed to
revoke his term of supervised release; (3) Pacheco’s confirmation to the District Court
that he, with the assistance of Counsel, reviewed and understood the charged violations
and the applicable Guidelines; and (4) the District Court’s explanation, guided by the 18
U.S.C. § 3553(a) factors, for sentencing Pacheco at the top of the Guidelines range.
Related to the imposed sentence, the brief also addresses Pacheco’s argument that he
should have been released on an ankle monitor. The brief fully explains why all these
arguments are frivolous based on the applicable law. Thus, we are satisfied that
Counsel’s brief identifies the potentially appealable issues and explains why they are
frivolous.
Having determined that Counsel’s brief meets the rule’s requirements, we move to
step two—an independent review of the record.2 Because the Court is guided by
Counsel’s brief, we will conduct an independent review of the issues identified in
Counsel’s brief.3 See, e.g., United States v. Youla, 241 F.3d 296, 301 (explaining that, in
engaging in its independent review, the Court limits its examination of the record to parts
2 We review challenges to a District Court’s sentencing decisions for an abuse of discretion.
United States v. Tomko, 562 F.3d 558, 561 (3d Cir. 2009). And we review challenges to the
District Court’s factual determinations “underlying the denial of a Sentencing Guidelines
reduction for acceptance of responsibility for clear error[.]” United States v. Lessner, 498
F.3d 185, 199 (3d Cir. 2007) (explaining that reversal is proper “only if we are left with a
definite and firm conviction that a mistake has been committed”).
3 The government filed a brief supporting Counsel’s motion to withdraw. Pacheco did not
file a pro se brief.

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identified by an adequate Anders brief). As discussed above, Counsel’s brief identifies
four potential issues for appeal. We agree with Counsel that the District Court had
jurisdiction to revoke Pacheco’s supervised release, Pacheco’s admissions provided
sufficient proof that he violated his release conditions, and Pacheco’s waiver of his right
to a revocation hearing was knowing and voluntary. Only the fourth issue Counsel
identified warrants further discussion: the reasonableness of Pacheco’s top-of-the-
Guidelines sentence for violations of the terms of his supervised released.4
A sentencing court abuses its discretion if the sentence imposed is unreasonable.
United States v. Cooper, 437 F.3d 324, 326 (3d Cir. 2006). A sentence is procedurally
reasonable if the sentencing court accurately calculates the applicable Guidelines range,
considers all departure motions, and considers the relevant § 3553(a) factors. United
States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). A sentence is substantively
reasonable unless the Court determines “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 568.
Any challenge to the reasonableness of Pacheco’s sentence would be frivolous.
First, the transcript reveals that the District Court accurately calculated the applicable
Guidelines range, heard argument on and considered Pacheco’s request for a below-
Guidelines sentence, and considered the applicable § 3553(a) factors. Neither Pacheco
4 We review challenges to a District Court’s sentencing decisions for an abuse of
discretion. United States v. Tomko, 562 F.3d 558, 561 (3d Cir. 2009).

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nor his Counsel challenged the District Court’s application of the § 3553(a) factors or the
calculated Guidelines range. And as the Supreme Court established in Rita v. United
States, sentences within the applicable Guidelines range are presumed reasonable. 551
U.S. 338, 347 (2007). Second, any argument that “no reasonable sentencing court”
would have imposed a sentence at the top of the applicable Guidelines range is also
frivolous. Thus, to the extent this issue identifies a challenge to substantive
reasonableness, it does not constitute an issue of arguable merit warranting appellate
review.
III. CONCLUSION
For these reasons, we will grant Counsel’s motion to withdraw and affirm the
District Court’s judgment of sentence.

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