United States v. Joseph Vezo ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-2982
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UNITED STATES OF AMERICA
v.
JOSEPH VEZO,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(No. 3-19-cr-00213-001)
U.S. District Judge: Honorable Malachy E. Mannion
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Submitted Under Third Circuit L.A.R. 34.1(a)
December 4, 2023
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Before: SHWARTZ, CHUNG, and MCKEE, Circuit Judges.
(Filed: December 7, 2023)
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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.
SHWARTZ, Circuit Judge.
Joseph Vezo appeals the District Court’s judgment for his violation of supervised
release. Because there are no nonfrivolous issues warranting review, we will grant his
counsel’s motion to withdraw under Anders v. California, 386 U.S. 738 (1967), and
affirm.
I
In September 2021, Vezo pleaded guilty to mail fraud, was sentenced to time
served, and immediately commenced a two-year term of supervised release. His
conditions of release required, among other things, that he not possess or use controlled
substances and that he follow the instructions of both probation and any treatment
program. Within one month of his release, Vezo admitted to drug use. After several
other instances of drug use over the next six months, Vezo completed an inpatient
treatment program and then was released to a halfway house. Vezo received a one-day
pass from the half-way house to attend the birth of his child, but he did not return. The
probation office filed a petition alleging numerous violations of the conditions of his
release and obtained an arrest warrant.1
1
The petition alleged the following violations: unlawfully possessing and using
controlled substances (mandatory condition nos. 2 and 3, respectively); not truthfully
answering questions by the probation officer (standard condition no. 4); interacting with
someone engaged in criminal activity (standard condition no. 8); failing to follow the
instructions of the probation officer (standard condition no. 13); failing to participate in
and follow the rules and regulations of an inpatient treatment program (additional
condition no. 2); and failing to report to the probation office as instructed (standard
condition no. 2).
2
Vezo was arrested and appeared before the District Court for a supervised release
revocation hearing. The Court (1) confirmed that Vezo was not under the influence of
drugs or alcohol and understood the proceedings, (2) reviewed the nature of the
proceedings and alleged violations, (3) noted the applicable maximum penalties and
Sentencing Guidelines range of seven to thirteen months, and (4) ensured that Vezo had
sufficient time to confer with counsel. Vezo waived his right to a hearing and admitted to
the violations. The Court heard from both counsel and Vezo before sentencing Vezo to
eleven months’ imprisonment and one year of supervised release. In justifying the
sentence, the Court explained that Vezo “regularly” lied to his probation officer and
failed to take advantage of the opportunities that the probation office provided. App. 48.
Vezo’s counsel filed an appeal on his behalf and, finding no nonfrivolous
arguments, moved to withdraw under Anders.2
II3
A
Our local rules allow defense counsel to file a motion to withdraw and an
accompanying brief under Anders when counsel has reviewed the record and concludes
that “the appeal presents no issue of even arguable merit.” 3d Cir. L.A.R. 109.2(a).
When counsel submits an Anders brief, we must determine: “(1) whether counsel
adequately fulfilled the rule’s requirements; and (2) whether an independent review of the
2
Vezo did not file his own pro se brief despite having the option to do so.
3
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
3
record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d
Cir. 2001) (citation omitted). An issue is frivolous if it “lacks any basis in law or fact.”
McCoy v. Ct. of Appeals of Wis, Dist. 1, 486 U.S. 429, 438-39 n.10 (1988).
To determine whether counsel has fulfilled his obligations, we examine the Anders
brief to see if it (1) shows that he has thoroughly examined the record in search of
appealable issues, identifying those that arguably support the appeal, Smith v. Robbins,
528 U.S. 259, 271 (2000) (citing Anders, 386 U.S. at 744), and (2) explains why any of
the identified issues are frivolous, United States v. Marvin, 211 F.3d 778, 780-81 (3d Cir.
2000). If counsel satisfies these requirements, “then we may limit our review of the
record to the issues counsel raised.” United States v. Langley, 52 F.4th 564, 569 (3d Cir.
2022).
B
Vezo’s counsel has satisfied his Anders obligations. Counsel correctly recognized
that, because Vezo admitted he violated the terms of his supervised release, his appellate
issues were limited to the (1) District Court’s jurisdiction, (2) voluntariness of his
admission, and (3) reasonableness of his sentence. See United States v. Broce, 488 U.S.
563, 569 (1989). The Anders brief explains why challenges to any three of these issues
lack support. Therefore, counsel’s brief is sufficient, Youla, 241 F.3d at 300-01, and we
agree that there are no nonfrivolous issues warranting an appeal.4
4
We exercise plenary review to determine whether there are any nonfrivolous
issues for appeal. Penson v. Ohio, 488 U.S. 75, 80-83 & n.6 (1988).
4
First, the District Court had jurisdiction5 because Vezo pleaded guilty to violating
a federal statute, see 18 U.S.C. § 3231. Moreover, the District Court had the authority to
revoke a sentence of supervised release pursuant to 18 U.S.C. § 3583(e).
Second, Vezo’s admission that he violated the terms of his supervised release was
counseled and voluntary.6 Broce, 488 U.S. at 569. In the context of a revocation hearing,
the voluntariness of a defendant’s waiver is based on the “totality of the circumstances”
and does not require “rigid or specific colloquies with the district court.” United States v.
Manuel, 732 F.3d 283, 291 (3d Cir. 2013) (internal quotation marks omitted). Rather, the
record need only show that the defendant is aware of “both the rights afforded him [] and
the consequences of relinquishing those rights.” Id. Before Vezo’s admission, the
District Court (1) confirmed that Vezo was not under the influence of any drugs or
alcohol that would make him unable to understand the proceedings, (2) detailed the
alleged violations, (3) noted the maximum statutory penalty and Guidelines range, (4)
ensured that Vezo had an opportunity to confer with counsel about the alleged violations
and whether to proceed with a hearing, and (5) verified Vezo’s decision to admit to the
violations in lieu of a hearing. Although the District Court did not place Vezo under oath
5
Our review of jurisdictional issues is plenary. United States v. Williams, 369
F.3d 250, 252 (3d Cir. 2004).
6
Because Vezo did not object to the plea colloquy in the District Court, we review
for plain error. United States v. Goodson, 544 F.3d 529, 539 & n.9 (3d Cir. 2008). To
establish plain error, a defendant must show (1) an error, (2) which was plain, and (3) that
affected his substantial rights. United States v. Olano, 507 U.S. 725, 732-35 (1993). If a
party can show plain error, we may exercise our discretion to correct the error if the error
“seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.”
Id. at 736 (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)).
5
or address his right to question witnesses and present evidence, Fed. R. Crim. P. 32.1(b),
Rule 32.1 does not have an oath requirement, compare Fed. R. Crim. P. 11(b)(1) with
Fed. R. Crim. P. 32.1,7 and the Magistrate Judge advised Vezo of these rights at his initial
appearance following his arrest. Thus, the “totality of the circumstances” show that Vezo
was aware of the charges against him, the “rights afforded [to] him[,] and the
consequences of relinquishing those rights.” Manuel, 732 F.3d at 291 (internal quotation
marks omitted). Moreover, any omission did not affect Vezo’s substantial rights.
United States v. Olano, 507 U.S. 725, 732-35 (1993). Accordingly, any challenge to his
knowing and voluntary admission would be frivolous.
Third, Vezo’s sentence was procedurally and substantively reasonable.8 See
United States v. Tomko, 562 F.3d 558, 566 (3d Cir. 2009) (en banc). As to procedural
reasonableness, the District Court followed United States v. Gunter’s three-step
procedure, which requires a court to (1) calculate the applicable Guidelines range,
(2) consider departure motions, and (3) meaningfully address all relevant factors under
§ 3553(a). 462 F.3d 237, 247 (3d Cir. 2006). Here, the Court accurately calculated a
Guidelines range of seven to thirteen months because Vezo committed Grade C
violations of supervised release, U.S.S.G. § 7B1.1(a)(3) (defining a Grade C violation, in
7
In any event, the failure to administer the oath did not seriously affect the
integrity of the proceedings, Olano, 507 U.S. at 736, since a defendant should not expect
that false statements to a court are ever acceptable.
8
Because Vezo did not object, we review the procedural challenge to his sentence
for plain error. See United States v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en
banc). We review the substantive reasonableness of a sentence for abuse of discretion.
Gall v. United States, 552 U.S. 38, 46 (2007); United States v. Azcona-Polanco, 865 F.3d
148, 151 (3d Cir. 2017).
6
relevant part, as “a violation of any other condition of supervised release”), and his
criminal history category was V. See U.S.S.G. § 7B1.4. The Court also correctly
recognized that a statutory maximum of two years applied. 18 U.S.C. § 3583(e)(3). The
eleven-month sentence the Court imposed was therefore within the Guidelines range and
did not exceed the statutory maximum.
There were no departure motions filed and the District Court gave “rational and
meaningful consideration” to the § 3553(a) factors. Tomko, 562 F.3d at 568 (quoting
United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc)); see also 18 U.S.C.
§ 3583(e). The Court heard arguments from Vezo and his counsel about Vezo’s conduct
while on supervision, efforts to obtain work, and desire to “get [his] life back together.”
App. 46-47. The Court considered counsels’ arguments, the violation documents, and the
§ 3553(a) factors, and stated that while Vezo “talk[s] the talk[],” App. 47, his
representations lack credence given his dishonesty to his probation officer, failure to take
advantage of the opportunities the probation office afforded him, and violations of
various conditions of his release. The Court concluded that a sentence within the
Guidelines range was therefore “appropriate . . . to provide adequate community
protection and deterrence.” App. 48. Thus, any argument that Vezo’s sentence was
procedurally unreasonable lacks merit.
Finally, Vezo’s sentence was substantively reasonable because we cannot say that
“no reasonable sentencing court would have imposed the same sentence on [him] for the
reasons the district court provided.” Tomko, 562 F.3d at 568. First, Vezo admitted to a
controlled substance offense, and the District Court was required to revoke his term of
7
supervised release. 18 U.S.C. § 3583(g). Second, Vezo’s repeated violations support a
sentence within the Guidelines range. Third, a sentence within the Guidelines is
presumptively reasonable. See United States v. Pawlowski, 27 F.4th 897, 912 (3d Cir.
2022). Finally, the sentence serves to protect the public, deter similar conduct, and
punish Vezo for breaching the Court’s trust when it granted him a downward variance on
his original sentence, sentenced him to time served, and immediately released him. See
United States v. Dees, 467 F.3d 847, 853 (3d Cir. 2006) (“A district court’s primary
consideration in handing down a revocation sentence is the defendant’s breach of trust,”
while considering “to a limited degree, the seriousness of the underlying violation and the
criminal history of the violator.” (internal quotation marks omitted)). Accordingly, any
challenge to the substantive reasonableness of Vezo’s sentence is meritless.
III
For the foregoing reasons, we will grant counsel’s motion to withdraw and affirm.
8