United States of America v. Nicholas Cerione

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________
No. 24-1106
_________________
UNITED STATES OF AMERICA
v.
NICHOLAS CERIONE,
Appellant
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 1:23-cr-00062-001)
District Judge: Honorable Christine P. O’Hearn
________________
Submitted Under Third Circuit L.A.R. 34.1(a)
November 13, 2024
Before: RESTREPO, MONTGOMERY-REEVES, and AMBRO, Circuit Judges.
(Opinion filed: January 10, 2025)
___________
OPINION*
___________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

-- 1 of 6 --

2
MONTGOMERY-REEVES, Circuit Judge.
Nicholas Cerione appeals his conviction and sentence for possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). Cerione’s appointed
counsel seeks to withdraw under Anders v. California, 386 U.S. 738 (1967). Because we
agree that no nonfrivolous issues exist, we will grant the motion to withdraw and affirm
the District Court’s judgment. We state for purposes of counsel’s filing a petition for writ
of certiorari in the Supreme Court that the issues in the appeal lack merit.1
I. BACKGROUND2
In January 2023, Cerione, following the execution of a written plea agreement,
pleaded guilty to possession of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and (b)(2).
In the plea agreement, Cerione waived his right to appeal certain stipulated facts
relating to his child pornography possession, including that some of the material
portrayed a minor under the age of 12, included sadistic or masochistic conduct or
portrayed other depictions of violence.
The District Court held a plea hearing in accordance with Federal Rule of
Criminal Procedure 11. After a thorough colloquy, the District Court was satisfied that
(1) Cerione understood the consequences of the plea; (2) he knowingly and voluntarily
1 We are noting that the issues in the appeal lack merit after a request by the United
States, in accordance with Third Circuit L.A.R. 109.2(b) (2011).
2 We write for the benefit of the parties and recite only essential facts.

-- 2 of 6 --

3
entered the plea; and (3) an adequate factual basis supported the plea. The Court then
accepted Cerione’s guilty plea.
Before sentencing, the U.S. Probation Office prepared a Presentence Investigation
Report (the “PSR”), which concluded that Cerione’s range under the Federal Sentencing
Guidelines (the “Guidelines”) was 78 to 97 months’ imprisonment. At sentencing,
neither party objected to the PSR. The Government sought a sentence within the
Guidelines range. Cerione argued for a downward variance of time-served with 10 years
of supervised release. The District Court adopted the Probation Office’s findings
regarding the applicable Guidelines range, but varied downward to a total offense level of
25, which yielded a Guidelines range of 57 to 71 months’ imprisonment. The Court
imposed a sentence of 60 months’ imprisonment. Cerione filed a notice of appeal. His
counsel filed the instant motion to withdraw from representation and the accompanying
brief.
II. DISCUSSION3
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 her 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.”
3 The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291.

-- 3 of 6 --

4
United States v. Langley, 52 F.4th 564, 569 (3d Cir. 2022) (citing United States v. Youla,
241 F.3d 296, 300 (3d Cir. 2001)).
An Anders brief fulfills the requirements of Local 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. (citing Youla, 241 F.3d at 300). Here,
counsel identifies three issues that could support an appeal and explains why each is
frivolous: (1) the legality of the appellate waiver; (2) the legality of the guilty plea
hearing; and (3) the legality of the sentence. Thus, counsel’s brief meets our Anders
requirement.
An independent review of the record also reveals that Cerione’s appeal is
frivolous. In reviewing the record, we confine our scrutiny to those portions of the record
identified by counsel’s adequate Anders brief. Youla, 241 F.3d at 301.
First, we agree that the appellate waiver presents no nonfrivolous issues. Cerione
signed the Rule 11 form attesting that he understood the terms of his plea agreement,
including the waiver, and confirmed the same to the District Court. Thus, we agree with
counsel that there is no nonfrivolous issue related to Cerione’s appellate waiver.
Second, as to Cerione’s guilty plea hearing, the District Court satisfied the
constitutional requirements and Federal Rule of Criminal Procedure 11. The District
Court ensured that: Cerione understood the charges against him and his rights; his plea
was voluntary and knowing and was not the product of any threats or coercion; he had the
opportunity to speak with his attorney, review all the documents and have all his
questions answered; and he understood the proceedings and the terms of the plea

-- 4 of 6 --

5
agreement, including its appellate waiver provision. Moreover, there was an adequate
factual basis for the plea. Only then did the District Court accept his guilty plea.
Third and finally, we agree there are no issues with Cerione’s sentence. A
sentencing court abuses its discretion if the sentence imposed is unreasonable. United
States v. Cooper, 437 F.3d 324, 326–28 (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.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).
As Cerione’s counsel explains, any procedural challenge to the reasonableness of
his sentence would be frivolous. Cerione was sentenced to 60 months of imprisonment,
which was below his Guidelines range of 78 to 97 months and well below the statutory
maximum sentence of 240 months (20 years). U.S.S.G. Ch. 5, Pt. A; 18 U.S.C. §
2252A(a)(5)(B), (b)(2). When sentencing Cerione, the District Court complied with the
requirements of Federal Rule of Criminal Procedure 32 and followed the three-step
process outlined in Gunter, 462 F.3d at 247. The District Court accurately calculated the
applicable Guidelines range, heard argument on and, in fact, granted Cerione’s request
for a below-Guidelines sentence, and meaningfully considered the applicable § 3553(a)
factors. Regarding substantive reasonableness, any argument that “no reasonable
sentencing court” would have imposed a below-Guidelines sentence is also frivolous.

-- 5 of 6 --

6
Tomko, 562 F.3d at 568.
III. CONCLUSION
For the foregoing reasons, we will grant counsel’s motion to withdraw and affirm
the District Court’s judgment. We also state that the issues presented in the appeal lack
legal merit for purposes of counsel’s filing a petition for writ of certiorari in the Supreme
Court.

-- 6 of 6 --