United States v. Olson, 111813 FED3, 13-1654

Docket Nº13-1654, 13-1655
Opinion JudgeSHWARTZ, Circuit Judge.
Party NameUNITED STATES OF AMERICA v. JEFFREY J. OLSON, Appellant
Judge PanelBefore: HARDIMAN, SHWARTZ, and SCIRICA, Circuit Judges.
Case DateNovember 18, 2013
CourtUnited States Courts of Appeals, Court of Appeals for the Third Circuit

UNITED STATES OF AMERICA

v.

JEFFREY J. OLSON, Appellant

Nos. 13-1654, 13-1655

United States Court of Appeals, Third Circuit

November 18, 2013

NOT PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a) November 15, 2013.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Nos. 3-02-cr-00206-001, 3-11-cr-00055-001) District Judge: James M. Munley.

Before: HARDIMAN, SHWARTZ, and SCIRICA, Circuit Judges.

OPINION

SHWARTZ, Circuit Judge.

Jeffrey Olson was sentenced to prison after pleading guilty to a charge of wire fraud. Because his commission of that offense constituted a violation of the supervised release conditions imposed upon him as a result of separate mail fraud and tax evasion convictions, the District Court sentenced him to an additional term of imprisonment to run consecutively to the sentence for the underlying wire fraud offense. Olson now appeals from the District Court's judgments of conviction (Appeal No. 13-1654) and revocation (Appeal No. 13-1655). His counsel has moved to withdraw under Anders v. California, 386 U.S. 738 (1967). For the reasons that follow, we will grant counsel's motion to withdraw and affirm the judgments of conviction and revocation.

I.

As we write principally for the benefit of the parties, we recite only the essential facts and procedural history. While serving his 87-month prison term for the mail fraud and tax evasion charges, and during the three-year term of supervised release, Olson solicited investments totaling $2.8 million from an online paramour and other individuals, which investments Olson instead used for his personal benefit.

A grand jury returned a one-count indictment against Olson, charging him with wire fraud in violation of 18 U.S.C. § 1343, and the United States Probation Office filed a petition to revoke Olson's supervised release.

Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), Olson entered a guilty plea to a superseding information charging him with wire fraud. In relevant part, the plea agreement: (1) provided for a three-level reduction under the advisory Sentencing Guidelines if Olson demonstrated acceptance of responsibility; (2) stipulated to a loss amount of greater than $2.5 million; (3) agreed to a sentence between 48 and 51 months' imprisonment; (4) stated that "should the defendant provide substantial assistance to the government after sentencing, the United States will consider filing a motion to depart from the recommended sentencing range pursuant to Rule 35"; and (5) stated that it was the "complete and only Plea Agreement between the United States . . . and the defendant . . . and . . . supersedes all prior understandings, if any, oral or written, and cannot be modified other than in writing that is signed by all the parties or on record in Court" and also that "[n]o other promises or inducements have been or will be made to the defendant in connection with this case, nor have any predictions or threats been made in connection with this plea." Supp. App. 1-15. The plea agreement contains no mention of Olson's supervised release violation.

The District Court accepted Olson's guilty plea on the date of his sentencing. Olson then waived a hearing concerning the supervised release violation and admitted to violating his supervised release conditions by committing another crime. The District Court imposed a sentence of 51 months' imprisonment on the wire fraud conviction and 14 months' imprisonment on the supervised release violation, to be served consecutively.

Olson now appeals, and his counsel has filed a motion to withdraw accompanied by a brief pursuant to Anders. Olson has filed a pro se informal brief and supplemental brief in further support of his appeal. Olson's principal argument is an allegation that the government promised that his prison terms on the wire fraud conviction and supervised release violation would be served concurrently.

II.1

When counsel submits an Anders brief, the Court must determine: "(1) whether counsel adequately fulfilled the rule's requirements; and (2) whether an independent review of the record presents any nonfrivolous issues." United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Where an Anders brief initially appears to be adequate on its face, the appellate court is guided in reviewing the record by the Anders brief itself. A complete "scouring of the record" is unnecessary. Id. at 300-01.

A. Sufficiency of the Anders Brief

Turning first to whether counsel has fulfilled the rule's requirements, the Court examines the brief to determine if it: (1) shows that counsel has thoroughly examined the record in search of appealable issues, id. at 300; (2) identifies any issues arguably supporting the appeal even though the appeal was wholly frivolous, Smith v. Robbins, 528 U.S. 259, 285 (2000); and (3) explains why the issues are frivolous, United States v. Marvin, 211 F.3d 778, 780-81 (3d Cir. 2000). All three elements are satisfied here. First, counsel's brief demonstrates a thorough examination of the record, from jurisdiction to sentencing. Second, the brief identifies and appraises potential issues on appeal concerning the District Court's jurisdiction, the voluntariness of Olson's guilty plea, the sufficiency of the evidence regarding the supervised release violation, and the reasonableness of the sentence. Third, as discussed further below, counsel's brief accurately and eloquently explains why these issues are frivolous in light of the governing law.

For these reasons, counsel's brief is sufficient, and we therefore proceed in our review of the issues based on the content of the Anders brief itself

B. No Non-Frivolous Issues

First, the District Court had jurisdiction over both the wire fraud offense and the supervised release violation.2 The District Court has jurisdiction over all federal offenses, including violations of the wire fraud statute, 18 U.S.C. § 1343, pursuant to 18 U.S.C. §...

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