United States of America v. Anthony Brookins

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 23-3174
________________
UNITED STATES OF AMERICA
v.
ANTHONY BROOKINS,
Appellant
_______________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 2:08-cr-00166-001
District Judge: The Honorable Joy Flowers Conti
__________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 23, 2025
Before: HARDIMAN, AMBRO, and SMITH, Circuit Judges
(Filed: April 1, 2025)
Stephen H. Begler
Suite 610

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505 Court Place
Pittsburgh, PA 15219
Counsel for Appellant
Jonathan R. Bruno
Donovan J. Cocas
Laura S. Irwin
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
__________________________
OPINION OF THE COURT
__________________________
SMITH, Circuit Judge.
Anthony Brookins violated provisions governing the
term of supervised release he was serving. As a result, his
supervised release was revoked and the District Court imposed
a revocation sentence from which he appealed pro se. We then
appointed the same counsel who had represented Brookins in
his District Court proceeding to represent him on appeal.
Counsel filed an Anders brief1—and a woefully inadequate one
1 An Anders brief, which is accompanied by counsel’s motion
to withdraw, advises the court of appeals that counsel has not

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at that—and sought leave to withdraw. For the reasons set out
below, we will discharge counsel and will direct the Clerk of
Court to appoint new counsel for Brookins.
I.
In May 2009, a jury found Anthony Brookins guilty of
both a firearm offense and a drug trafficking charge. The
District Court sentenced Brookins to 120 months and 240
months, respectively, with those sentences to be served
concurrently. The Court also imposed three- and ten-year
periods of supervised release, respectively. They, too, were to
be served concurrently. Pursuant to a First Step Act motion,
the District Court later reduced Brookins’s 240-month
sentence on the drug trafficking offense to 180 months. In
December 2019 after his release from prison, Brookins began
serving the supervisory period of his sentence.
In May of 2023, Brookins’s probation officer filed a
petition alleging that Brookins had violated the terms of his
supervised release. The petition listed five violations.
Violation number 1 alleged that Brookins had been charged in
a Pennsylvania criminal complaint with simple assault and
harassment arising out of a domestic incident involving his
girlfriend. Violation numbers 2, 3, and 4 alleged that on three
occasions urine specimens he provided to the Probation Office
had tested positive for cocaine. Violation number 5 averred
that Brookins had failed to participate in the substance abuse
testing and treatment program required by the terms of his
supervised release and stated that his noncompliance had
identified any non-frivolous issues to raise on review. Anders
v. California, 386 U.S. 738, 744 (1967).

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resulted in his discharge from the program. A supplemental
petition added violation number 6 stemming from another
domestic incident. The underlying conduct led to the filing of
additional Pennsylvania criminal charges against Brookins.
At a revocation hearing, Brookins admitted that he was
guilty of committing “violation number 5” by failing to comply
with the substance abuse treatment program. United States v.
Brookins, Crim. No. 2:08-cr-00166-JFC, cm/ecf no. 198 at 6
(W.D. Pa. Nov. 21, 2023) (hereafter “Revoc. Tr.”). For its part,
the Government withdrew the other five alleged violations.
The revocation hearing proceeded solely on violation number
5, a Grade C violation under the sentencing guidelines.
After Brookins admitted to violation number 5, the
District Court turned to hearing about Brookins’s background
and specifically asked about his “current situation.” Revoc. Tr.
at 8. The probation officer informed the Court that Brookins
had been residing with his girlfriend who had been the victim
of the two domestic incidents alleged in the petition. The
District Court inquired if drugs had been involved in the
domestic incidents, and both Brookins and his probation
officer acknowledged as much. In response to an inquiry
directed to him from the Court, Brookins claimed that he
wanted help to deal with his drug problem.
The District Judge stated that she had reviewed
Brookins’s earlier pre-sentence report and thought that
“intensive inpatient drug treatment” might be the best means
to help him address his substance abuse problem. Revoc. Tr.
at 18. The Court noted that “people tend to fall back into the
drug usage, they get back into their old habits.” Id. at 24. She

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then asked if Brookins was willing to participate in a long-term
program, and he expressed his willingness to do so.
The District Court went on to find that Brookins had
violated the condition of supervision which required his
participation in substance abuse treatment, a Grade C violation.
The Court sentenced Brookins to a total of 14 months of
imprisonment, on both counts 1 and 2, followed by a term of
supervised release. In addition, the District Court declared that
upon release Brookins was to participate in an intensive drug
treatment program and he was to have “no contact directly or
indirectly” with the alleged victim of the domestic incidents.
Id. at 26.
Brookins filed a pro se notice of appeal.2 United States
v. Brookins, No. 23-3174, cm/ecf no. 1 (3d Cir. Dec. 12, 2023)
2 The District Court exercised jurisdiction under 18 U.S.C. §§
3231 and 3583(e). Although Brookins’s pro se notice of
appeal was untimely when received by the Clerk’s Office, he
had placed that notice in the prison mail nine days after he was
sentenced. Accordingly, under the prison mailbox rule, his
notice of appeal was timely under Federal Rule of Appellate
Procedure 4(b)(1)(A). See Houston v. Lack, 487 U.S. 266,
270-71 (1988) (holding that the timeliness of a pro se prisoner
appeal is based on the date the prisoner delivers the notice of
appeal to prison authorities). Moreover, the timeliness of a
notice of appeal in a criminal case is not jurisdictional, and the
Government has not challenged the timeliness of this appeal.
See United States v. Muhammud, 701 F.3d 109, 111 (3d Cir.
2012). We thus exercise jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a).

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(docket hereafter cited as COA3). In appointing appellate
counsel, we looked to the same lawyer who had represented
Brookins before the District Court. On the very day that we
appointed that attorney, he moved to withdraw. He noted that
Brookins had filed an untimely notice of appeal and also
claimed that there were irreconcilable differences between
lawyer and client. After we directed counsel to confirm that
Brookins had received a copy of the motion to withdraw,
counsel filed an amended motion to withdraw. In that motion,
he advised this Court that he had filed what he styled a “notice
of retirement to practice in this Court.” COA3, cm/ecf no. 9.
We responded by issuing a text order which requested
clarification of counsel’s retirement from “practice in this
Court” and whether it meant he wished to be removed from the
CJA panel in the District Court.3 Id. no. 10. We also reminded
him that attorneys appointed under the CJA are expected to
continue their representation on appeal. See 3d Cir. L.A.R.
109.1. Counsel relented, informing us that he would continue
to represent Brookins on appeal.
What followed was what counsel has characterized as
an Anders brief. It was accompanied by the usual motion to
withdraw from further representation of the appellant. Just a
cursory review of that eleven-page document reveals its
inadequacy. And our mention of its length is deceiving. The
first page—a cover page—sets out the case caption. The
3 CJA is an acronym for the Criminal Justice Act, which
“requires district courts to provide legal counsel for criminal
defendants charged with a felony when they are unable to pay
for an attorney.” United States v. Konrad, 730 F.3d 343, 346
(3d Cir. 2013) (citing 18 U.S.C. § 3006A(a)(1)(A)).

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second page, page i, provides a table of contents. Page ii is a
table of citations, listing five statutory sources, along with only
one case citation: Anders. Counsel’s certificate of membership
in the bar and certification that a virus check had been
performed appear on what has been paginated as “7”,
appearing near the end of the brief. The last of the eleven
pages, paginated as “8”, contains a certificate of service.
The remaining six pages constitute the “substance” of
the brief. None of them contains a full page of text. The first
of those six pages, paginated as “1”, states the bases for
jurisdiction in both the District Court and in this Court. The
issue presented appears on the next page. The factual recitation
follows and consists of two paragraphs. The first paragraph
sets out a procedural summary of Brookins’s underlying
criminal convictions. The second addresses Brookins’s
violation of supervised release but does not identify the
specific violation—the violation to which Brookins had
admitted. Nor is there any discussion of what took place during
the revocation hearing, other than that Brookins had “admitted
to a ‘C’ violation” and received a “Guideline sentence.”
Anders Br. at 3. There was no mention that the District Court
sentenced him to 14 months of imprisonment nor to the
additional time that Brookins would serve on supervised
release. The “Anders brief” is also silent with respect to the
new special conditions of supervised release which the District
Court imposed. That Brookins was to have no contact with the
alleged victim and that he was to participate in an intensive
drug treatment program went unmentioned.
The summary of argument section on the seventh of the
eleven-page document, paginated as number four, repeats that

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Brookins admitted to a supervised release violation and that he
received a “guideline sentence.” Anders Br. at 4. This section
advised that no challenges were raised as to whether the
admission was knowing and voluntary. The final sentence of
this summary of argument simply states: “In short, there is no
issue of arguable merit in this case and Counsel asks leave to
withdraw.” Id.
The argument section begins (and ends) on the eighth
page, which is numbered as “5”. It consists of a lone
paragraph. It claims that counsel had conducted “a careful
review” and “concluded that any further proceedings on behalf
of [Brookins] would be wholly frivolous and without arguable
merit within the meaning of Anders.” Anders Br. at 5.
Although counsel represented that he had reviewed the record
and transcripts in the case, the appendix submitted along with
the brief contains no more than the notice of appeal, the
judgment rendered after the revocation hearing, the revocation
petition itself, and the minutes from the revocation proceeding.
It does not include a transcript of the revocation hearing. That
was later provided by counsel after the Government filed a
motion to compel the filing of the transcript. See COA3,
cm/ecf nos. 45, 49. Brookins himself also filed the transcript
after he submitted an informal pro se brief.4
A conclusion section appears at “6”.
Brookins’s informal brief takes issue with the
following: the imposition of the no-contact order; the Court’s
4 When counsel has filed an Anders brief, he must serve it upon
his client, who “may also file a brief in response pro se.” 3d
Cir. L.A.R. 109.2(a).

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imposition of the maximum term of imprisonment under the
guideline range; the reasonableness of the inpatient drug
treatment requirement; whether the District Court procedurally
erred by failing to place on the record every condition of
supervised release; and whether he received all of the
discovery material to which he was entitled.
The Government responded with a comprehensive, 49-
page brief that scoured the record for any issue that might be
appealable. It thoroughly explained why, in its view, there
were no issues of arguable merit. In short, the Government did
appellate counsel’s job for him.
II.
Given the gross inadequacy of the representation we
have just recited in detail, we take this opportunity to once
again examine Anders v. California and to remind all who
represent criminal defendants on appeal—and to remind
ourselves—of the requirement that indigent defendants be
afforded constitutionally adequate legal representation.
Gideon v. Wainwright made clear the “fundamental nature of
the right to counsel” and declared that, “in our adversary
system of criminal justice, any person haled into court, who is
too poor to hire a lawyer, cannot be assured a fair trial unless
counsel is provided for him.” 372 U.S. 335, 343, 344 (1963).
Accordingly, indigent defendants have the right to court-
appointed counsel.
Several years after Gideon, the Supreme Court
considered the constitutional adequacy of the procedure
California courts required an indigent defendant’s court-
appointed counsel to follow in advising an appellate court that

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an appeal lacks merit. Anders, 386 U.S. at 740-41. Before
addressing the merits of the issue, the Supreme Court
highlighted its concern—reaching back to the 1950s—about
“discrimination against the indigent defendant.” Id. at 741.
After reciting its precedent, including Gideon, the Court went
on to declare that it “continue[d] to adhere to these principles.”5
Id. at 742.
The Anders Court then turned to the statement of
appellate counsel that there was no merit to the appeal before
it. Writing for the majority, Justice Clark declared that
“counsel’s bare conclusion” that his client’s appeal had no
merit was “not enough.” Id. His opinion went on to make clear
that the “constitutional requirement of substantial equality and
fair process can only be attained where counsel acts in the role
of an active advocate in behalf of his client.” Id. at 744. Anders
teaches that, as an advocate, counsel must
support his client’s appeal to the best of his
ability. Of course, if counsel finds his case to be
wholly frivolous, after a conscientious
examination of it, he should so advise the court
and request permission to withdraw. That
request must, however, be accompanied by a
brief referring to anything in the record that
might arguably support the appeal.
5 Anders, 386 U.S. at 741-742 (citing Griffin v. Illinois, 351
U.S. 12 (1956); Douglas v. California, 372 U.S. 353 (1963);
Johnson v. United States, 352 U.S. 565 (1957); Ellis v. United
States, 356 U.S. 674, 675 (1958); and Gideon, 372 U.S. at 344).

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Id. It is then “the court—not counsel,” that “proceeds, after a
full examination of all the proceedings, to decide whether the
case is wholly frivolous.” Id.
In the context of an Anders brief, the terms “wholly
frivolous” and “without merit” mean “that the appeal lacks any
basis in law or fact.” McCoy v. Ct. of Appeals of Wis., Dist. 1,
486 U.S. 429, 438 n.10 (1988). If there is an issue that is
“arguable” on its merits, then the appeal is not frivolous.
Anders, 386 U.S. at 744; Smith v. Robbins, 528 U.S. 259, 266
(2000).
In Penson v. Ohio, the Supreme Court considered
whether Ohio’s procedure for apprising an appellate court of a
meritless appeal complied with the process set out in Anders.
488 U.S. 75, 77-78 (1988). The Court reiterated the
importance of an indigent defendant’s having counsel in his
“first appeal as of right.” Id. at 79. It characterized Anders as
setting out “certain safeguards” that would avoid denying the
indigent appellant the right to “fair representation.” Id. at 80.
The first safeguard is the “conscientious examination of the
case” by appointed counsel. Id. (internal quotation marks and
citation omitted). When such scrutiny leads appointed counsel
to move to withdraw from the case on the basis that the appeal
is without merit, the Anders brief becomes the second
safeguard. Id.
As the Supreme Court has described it, the “so-called
‘Anders brief’ serves the valuable purpose of assisting the court
in determining both that counsel in fact conducted the required
detailed review of the case and that the appeal is indeed so
frivolous that it may be decided without an adversary
presentation.” Penson, 488 U.S. at 81-82. The Court has

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further explained that, in the absence of a compliant Anders
brief, the reviewing court is deprived “of the assistance of an
advocate in its own review of the cold record on appeal.” Id.
at 82.
The remaining safeguard is then the responsibility of the
appellate court, which must conduct a “full examination” of the
case. Id. at 80 (quoting Anders, 386 U.S. at 744). That
examination will determine whether the court goes on to
review the merits of the appeal without counsel’s assistance or
instead appoints new counsel to represent the indigent
defendant. Id.
In United States v. Langley, our court recounted that we
“have addressed the expectations of counsel when seeking to
withdraw under Anders primarily in three cases.” 52 F.4th 564,
570 (3d Cir. 2022) (citing United States v. Marvin, 211 F.3d
778 (3d Cir. 2000); United States v. Youla, 241 F.3d 296 (3d
Cir. 2001); and United States v. Coleman, 575 F.3d 316 (3d
Cir. 2009)). For purposes of the matter before us, Marvin and
Youla are most informative as they addressed “the contours of
the court’s and counsel’s obligations” in light of Anders.6
Marvin, 211 F.3d at 780. We deemed the counseled Anders
brief in Marvin to be inadequate because it failed to
demonstrate that counsel had fully “explored all possible issues
6Coleman is of limited importance to our inquiry because,
although it applied the analysis articulated in Marvin and
Youla, it did not set out any further guideposts for reviewing
an Anders brief.

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for appeal” and did not explain “why those issues that he [did]
address [were] legally frivolous.”7 Id. at 781.
We also deemed the Anders brief in Youla to be
inadequate. 241 F.3d at 300. There, we described both
counsel’s duties when deciding what kind of brief to submit
and the steps our Court should employ when presented with an
Anders brief. As to counsel’s duties, we instructed that they
“are (1) to satisfy the court that counsel has thoroughly
examined the record in search of appealable issues, and (2) to
explain why the issues are frivolous.” Id. (citing Marvin, 211
F.3d at 780). As a reviewing court, our inquiry is “twofold: (1)
whether counsel adequately fulfilled [his duties]; and (2)
whether an independent review of the record presents any
nonfrivolous issues.” Id. (citing Marvin, 211 F.3d at 780).
Whether counsel has satisfied his “Anders obligation”
determines the scope of our review at the second step of our
inquiry. Langley, 52 F.4th at 569. Once the Anders brief is
filed, our examination of the record is plenary, and we conduct
“a full examination of all the proceedings to decide whether the
case is wholly frivolous.” Id. at 568 (quoting Penson, 488 U.S.
at 80). When we conclude that counsel has satisfied his or her
duties, we may limit our plenary review “to the issues counsel
raised.” Id. at 569 (citing Youla, 241 F.3d at 301).
The defendant in Langley had pleaded guilty. In
response to the submission by his counsel of an Anders brief,
7 In Marvin, we noted that Third Circuit Local Rule 109.2
“tracks the Anders suggestion” regarding how counsel should
proceed when he has failed to identify any arguable issues of
merit. 211 F.3d at 780.

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Langley took advantage of the opportunity to file a pro se
informal brief under our court’s Local Rule.8 Counsel’s brief
did not address the issues raised in Langley’s pro se brief. We
recognized that our case law addressing appeals that involve
both an Anders brief and a pro se informal brief had not been
consistent, faulting counsel at times for not anticipating issues
raised by the defendant pro se even though an Anders brief is
filed prior to any submission by the defendant. 52 F.4th at 571-
72. We “clarif[ied] that counsel’s failure to address issues
raised in her client’s pro se brief does not render an Anders
brief inadequate per se. It may be relevant, however, in
illustrating a more general failure to identify and discuss
potentially appealable issues.” Id. at 573 (footnote omitted).
“[U]ltimately,” we declared, “our adequacy determination
must be made on a case-by-case basis.” Id. at 573-74.
Having addressed in Langley considerations to be taken
into account when there is both an Anders brief and a
submission from the defendant pro se, we turned to the
adequacy of counsel’s brief. That brief addressed the validity
of Langley’s guilty plea and the sentence imposed.9 We
8 See 3d Cir. L.A.R. 109.2(a).
9 When an Anders brief follows the entry by the defendant of a
guilty plea and the entry of a final judgment after sentencing,
the issues that the defendant may raise on direct appeal are
ordinarily limited to whether the defendant could be haled into
court at all, the validity of the guilty plea, and the legality of
the sentence. See United States v. Broce, 488 U.S. 563, 569,
575 (1989); see also Tollett v. Henderson, 411 U.S. 258, 267
(1973) (“When a criminal defendant has solemnly admitted in
open court that he is in fact guilty of the offense with which he

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concluded that counsel’s Anders brief “adequately explain[ed]
why there [were] no non-frivolous appealable issues regarding
the sufficiency of Langley’s plea hearing and the propriety and
length of Langley’s sentence.” 52 F.4th at 574. We noted that,
in the brief, counsel reviewed how the guilty plea colloquy
satisfied the requirements of Federal Rule of Criminal
Procedure 11 and that it was made knowingly and
voluntarily.10 Id. Counsel also had explained that the
defendant could challenge his sentence under 18 U.S.C.
§ 3742(a) only on certain grounds and that he could not
demonstrate that Langley’s sentence was “(1) imposed in
violation of law; (2) imposed as a result of an incorrect
application of the Federal Sentencing Guidelines; (3) greater
than the sentence specified in the applicable guideline range;
or (4) plainly unreasonable.” Id. Given counsel’s steady
march through the record, we concluded that he had “scoured
the record” and fulfilled his Anders obligations. Id. at 575.
III.
We have yet to address in a precedential opinion the
adequacy of an Anders brief filed in an appeal from revocation
of supervised release where a defendant has admitted a
is charged, he may not thereafter raise independent claims
relating to the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea.”); 18 U.S.C. § 3742(a).
10 See Boykin v. Alabama, 395 U.S. 238, 242 (1969) (holding
that, because a guilty plea “is itself a conviction” and the
defendant waives several constitutional rights, the record in
such a change of plea proceeding must show that the defendant
knowingly and voluntarily waived his rights).

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violation. We consider Langley’s focus on the sufficiency of a
plea hearing and the propriety and validity of a sentence to be
instructive. We turn first to the revocation proceeding.
A.
In determining the sufficiency of a revocation
proceeding, we are mindful that the violation at issue may be
one that does not also constitute a criminal offense. Johnson
v. United States, 529 U.S. 694, 700 (2000). Morrissey v.
Brewer established that the “revocation of parole is not part of
a criminal prosecution and thus the full panoply of rights due a
defendant in such a proceeding does not apply.” 408 U.S. 471,
480 (1972). Nonetheless, Morrissey held that certain
“minimum requirements of due process” apply in revocation
proceedings given their potential for depriving a parolee of the
conditional liberty he has enjoyed. Id. at 489.
The minimum protections of due process recognized in
Morrissey have been extended to proceedings related both to
probation, see Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973),
and supervised release, see United States v. Manuel, 732 F.3d
283, 291 (3d Cir. 2013) (citing Morrissey, 408 U.S. at 484;
Scarpelli, 411 U.S. at 781-82). In Manuel, we noted that
“Federal Rule of Criminal Procedure 32.1 was promulgated to
address [the] due process concerns” arising in a revocation
proceeding. 732 F.3d at 291. Similar to Langley’s assessment
of the sufficiency of the plea hearing by considering a district
court’s compliance with Rule 11, we conclude that an Anders
brief filed on appeal from a revocation proceeding should
contain a discussion of the district court’s compliance with
Rule 32.1, particularly subsection (b)(2) addressing revocation
hearings.

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Compliance with Rule 32.1 does not end the inquiry
into the sufficiency of a revocation hearing. Absent from Rule
32.1(b)(2) is any reference to the standard of proof applicable
in a revocation proceeding. That standard is provided, though,
in § 3583(e)(3). It specifies that a District Court must “find[]”
a violation of supervised release “by a preponderance of the
evidence.” 18 U.S.C. § 3583(e)(3). So at a minimum, the
applicable evidentiary standard requires a showing that there is
a factual basis for any findings that support a violation. See
Fed. R. Crim. P. 32.1(b)(2)(B) (requiring “disclosure of the
evidence against the person”); cf. Fed. R. Crim. P. 11(b)(3). As
Morrissey instructed, the informal hearing must be “structured
to assure that the finding of a . . . violation will be based on
verified facts and that the exercise of discretion will be
informed by an accurate knowledge of the [defendant’s]
behavior.” 408 U.S. at 484. Such a factual basis provides the
means by which a district court may assess whether a defendant
understands and knows what is at stake, particularly if he is not
contesting a violation. Accordingly, we hold that an Anders
brief filed pursuant to an appeal from the revocation of
supervised release, and after a defendant has admitted his
culpability, should address not only compliance with Rule 32.1
but also whether a preponderance of the evidence has
demonstrated a factual basis for the charged violation and
whether the defendant knew and understood the consequences
of admitting to the violative conduct.
We recognize that Boykin v. Alabama’s requirement
that a guilty plea must be knowing and voluntary to satisfy due
process has yet to be extended to admissions made by a
supervised releasee in revocation proceedings. See Boykin,
395 U.S. at 242, 243 n.5. But we have held that the knowing

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and voluntary standard applies to the waiver of the
nonconstitutional right to counsel in a revocation proceeding
as set forth in Rule 32.1(a)(3)(B). Manuel, 732 F.3d at 291.
There, we found the reasoning of our sister courts of appeals to
be persuasive: “that, in order for due process to be satisfied in
the context of a . . . revocation hearing, the defendant’s waiver
of rights under Rule 32.1 must be knowing and voluntary under
a ‘totality of the circumstances.’” Id. (citing United States v.
Hodges, 460 F.3d 646, 651-52 (5th Cir. 2006); United States v.
Correa–Torres, 326 F.3d 18, 23 (1st Cir. 2003); United States
v. LeBlanc, 175 F.3d 511, 515-17 (7th Cir. 1999)). “This
standard does not require ‘rigid or specific colloquies with the
district court.’” Id. (quoting Hodges, 460 F.3d at 651). Rather,
in applying that standard, we considered the totality of the
circumstances and determined that Manuel’s “waiver of
counsel at his revocation hearing was knowing and voluntary.”
Id.; see also United States v. Pelensky, 129 F.3d 63, 68 (2d Cir.
1997) (joining other courts of appeal in rejecting the need for
a “formal waiver from a defendant who has admitted to
violating the terms of probation or supervised release”).
We acknowledge that, unlike in Manuel, we do not
analyze whether Brookins adequately waived any specific right
during his revocation hearing. Rather, we review the
sufficiency of a revocation hearing conducted under both Rule
32.1 and § 3583(e)(3). Nonetheless, we conclude that the
knowing and voluntary standard endorsed in Manuel for the
waiver of nonconstitutional rights protected by Rule 32.1
should be addressed in an Anders brief when assessing the
sufficiency of a defendant’s admission to a violation of
supervised release made during a revocation proceeding.

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B.
Second, an Anders brief filed in an appeal challenging a
district court’s revocation of supervised release should address
the legality of any revocation sentence imposed. This
component of an Anders brief is dictated by both § 3583(e)(3),
which permits revocation and sentencing “after considering”
certain sentencing factors in § 3553, as well as by § 3742(a),
which allows a defendant to appeal a sentence.
The penalties that may be imposed for a violation of
supervised release may include not only imprisonment but also
an additional term of supervised release, together with such
conditions as reasonably relate to certain sentencing factors in
§ 3553. See 18 U.S.C. §§ 3583(d)(1), (e)(3). Part B of Chapter
7 of the applicable Guidelines Manual prescribes the penalties
for a defendant found in violation of a term of supervised
release. Guideline § 7B1.1 classifies such violations as Grades
A, B, or C. And the advisory Revocation Table in U.S.S.G. §
7B1.4 informs sentencing by providing ranges for
imprisonment based on the defendant’s criminal history
category and the grade of the violation. United States v. Dees,
467 F.3d 847, 853 (3d Cir. 2006). Scrutiny of a revocation
sentence requires consideration of all the components of a
sentence, including any addition to and/or modification of the
conditions of supervised release. And, as we established in
United States v. Bungar, revocation sentences are reviewed for
reasonableness. 478 F.3d 540, 542 (3d Cir. 2007).
Accordingly, in assessing the adequacy of an Anders
brief with respect to a revocation sentence, counsel should
address the sentence for its legality and validity under §

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3583(e), § 3742(a), and Chapter 7 of the U.S. Sentencing
Guidelines.
C.
Finally, as with an Anders brief filed in the wake of a
guilty plea, our review of the adequacy of an Anders brief in a
revocation proceeding must include whether the defendant has
taken advantage of the opportunity to file a pro se informal
brief as permitted under Third Circuit Local Rule 109.2(a). In
Langley, we noted that a defendant’s pro se submission can
“illustrate counsel’s more general failure to identify or discuss
potentially appealable issues, or to highlight [counsel’s] failure
to raise non-frivolous issues.” 52 F.4th at 572. In short,
“silence [in counsel’s brief] concerning issues raised in a
client’s pro se brief may be relevant to the court’s adequacy
determination.” Id.
IV.
Having specified the essentials of an Anders brief filed
after both a defendant’s admission of his breach of supervised
release conditions,11 and the consequent revocation of his
supervised release, we turn to whether counsel met his Anders
obligations in the case before us.12 Our earlier description of
11 In Dees, we instructed that “[a] district court’s primary
consideration in handing down a revocation sentence is the
defendant’s breach of trust.” 467 F.3d at 853.
12 Whether an Anders brief is adequate to assist us in our review
presents a question of law for which our review is plenary. See
United States v. Moscahlaidis, 868 F.2d 1357, 1360 (3d Cir.

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counsel’s sparse Anders brief renders lengthy discussion of
that question unnecessary. We conclude that counsel utterly
failed to meet his obligations under Anders.
The Anders brief filed in this appeal contained six pages
which, arguably, could be described as “substantive.” Yet
none of those pages set forth any factual recitation relating to
either the alleged violation of supervised release or the
revocation hearing itself. Although the submission indicated
that Brookins admitted a Grade C violation and received a
guideline sentence, we were left to guess what the violative
conduct had been and what type of penalty had been imposed
by the District Court. Instead of identifying a single issue and
explaining why it lacked merit, the brief offered only counsel’s
reassurance that there was nothing to Brookins’s appeal. That
is precisely the sort of “bare conclusion” the Anders Court
1989) (applying plenary review over legal question of whether
the government violated a plea agreement).

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declared to be “not enough.”13 386 U.S. at 742. Accordingly,
we conclude that counsel’s Anders brief is unacceptable.14
V.
Under our Local Rule, if we reject an Anders brief as
“inadequate to assist the court in its review,” we are to “appoint
substitute counsel, order supplemental briefing and restore the
case to the calendar.” 3d Cir. L.A.R. 109.2(a). We explained
in Marvin that in rejecting an Anders brief we are not
“express[ing] any opinion as to the merits” of the underlying
appeal. 211 F.3d at 782. We are “merely not[ing] that we are
not yet ready to decide this case rudderless, without the
guidance of counsel.” Id.
Here, although we have characterized counsel’s Anders
brief as “woefully inadequate,” we do have before us both
13 In focusing, as Youla instructs, on the substantive inquiry of
whether counsel’s scrutiny revealed any appealable issues, we
have highlighted the shortcomings of the factual and legal
analysis in the brief. We note, however, that consideration of
the appendix submitted by counsel also informs whether
counsel has met his Anders obligations. Here, the absence of
the revocation hearing transcript from the initial appendix
ensured that we had no basis on which to conclude that counsel
had himself “scoured the record” before drafting the Anders
brief. Langley, 52 F.4th at 575.
14 Because the bare bones of the Anders brief before us compel
the conclusion that it falls well short of what is acceptable, we
do not consider whether Brookins’s pro se informal brief sheds
any light on whether counsel has fulfilled his Anders
obligations.

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Brookins’s pro se informal brief and the Government’s
comprehensive evaluation of whether Brookins’s appeal is
without merit. While we could conceivably proceed to
consider the merits, we believe it unwise to do so. Such a
course would tacitly condone the filing of an inadequate
Anders brief when the Government, as we have put it, “did
appellate counsel’s job for him.”
The stunted appellate process we are confronted with is
hardly representative of how our adversary system is designed
to work. Were we to leapfrog over what is effectively the lack
of an Anders brief, we would deprive both Brookins and this
court of what the Anders Court sought to assure: “that indigent
defendants have the benefit of what wealthy defendants are
able to acquire by purchase—a diligent and thorough review of
the record and an identification of any arguable issues revealed
by that review.” McCoy, 486 U.S. at 439 (discussing Anders,
386 U.S. at 744). And it is just such a review that “assists the
court in making the critical determination” of whether the
appeal presents any arguable issue of merit. Id.
Because we have not been provided the assurances that
Anders was designed to provide a reviewing court, we will
discharge defense counsel. We will also direct the Clerk of
Court to appoint new counsel whose job it will be to conduct
the conscientious examination required by Anders and to then
proceed accordingly.15
15 In Langley, we observed that the courts of appeals have
resolved Anders appeals by either dismissing the appeals or
affirming the district court’s judgment. 52 F.4th at 568
n.2. Although we neither affirm nor dismiss here upon

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VI.
We remain mindful of this exhortation from the
Supreme Court: “The need for forceful advocacy does not
come to an abrupt halt as the legal proceeding moves from the
trial to appellate stage.” Penson, 488 U.S. at 85. While
adversarial zeal may be more difficult for counsel to muster
while writing an Anders brief than it is when arguing for an
acquittal, our system demands from counsel a consistent
commitment to a client and to the court at every stage of
judicial proceedings. Counsel must keep in mind that an
Anders brief “is a device for assuring that the constitutional
rights of indigent defendants are scrupulously honored.”
McCoy, 486 U.S. at 444. Accordingly, the vigor of criminal
counsel’s advocacy must not waver in an appeal just because
the case appears straightforward and may, at first blush, be a
candidate for an Anders brief. That is because an Anders brief
“provides an independent inducement to counsel to perform a
diligent review.” Penson, 488 U.S. at 81 n.4. In the course of
that review, counsel may just discover an issue of arguable
merit. Id.
VII.
In sum, an Anders brief filed following an appeal of the
revocation of supervised release and the imposition of a
determining the Anders brief to be inadequate, we note that, in
this circuit, when an Anders brief has been deemed to be
adequate and there have been no non-frivolous issues
presented, the proper disposition is to affirm the judgment of
the District Court.

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revocation sentence after a defendant has admitted a violation
must at least address the sufficiency of the revocation
proceeding and the legality and propriety of the sentence. First,
counsel’s explanation concerning the revocation proceeding
itself requires a discussion of whether that proceeding satisfied
Federal Rule of Criminal Procedure 32.1(b)(2) and 18 U.S.C.
§ 3583(e), as well as whether any admission by the defendant
was knowing and voluntary. Second, in explaining that a
challenge to a revocation sentence is frivolous, the Anders brief
must address whether the sentence complied with § 3583(e),
§ 3742(a), and Part B of Chapter 7 of the applicable Guidelines
Manual. Counsel’s examination of a sentence’s legality and its
propriety should also consider whether it is reasonable.
Without both of these explanations, an Anders brief filed in an
appeal from revocation of supervised release and the
imposition of a revocation sentence will be inadequate.

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