NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No. 22-1898 _______________
UNITED STATES OF AMERICA
v.
CALIXTO TUMBACO, Appellant _______________
On Appeal from the District Court of the Virgin Islands (D.C. No. 3:19-cr-00039-004) Chief District Judge: Honorable Robert A. Molloy _______________
Submitted Under Third Circuit L.A.R. 34.1(a) on December 12, 2023
Before: HARDIMAN, KRAUSE, and RENDELL, Circuit Judges
(Filed: December 22, 2023)
_______________
OPINION* _______________
* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. KRAUSE, Circuit Judge.
Calixto Tumbaco appeals the District Court’s judgment of sentence, which
imposed terms of 120 months in prison and 5 years of supervised release. His counsel
has moved to withdraw under Third Circuit L.A.R. 109.2 and Anders v. California, 386
U.S. 738 (1967), claiming that there are no non-frivolous grounds for appeal. The
Government agrees that there are no non-frivolous issues with respect to Tumbaco’s 120-
month prison sentence or his underlying guilty plea. In an unusual twist, however, the
Government concedes that remand is appropriate because the District Court erred in
imposing the 5-year term of supervised release. We agree. Accordingly, we will deny
counsel’s motion to withdraw and affirm Tumbaco’s conviction, but will vacate the
supervised-release portion of his sentence and remand for re-sentencing on that portion
only.
I. DISCUSSION1
When confronted with an Anders brief, we first ask “whether counsel’s brief in
support of [his] motion fulfills the requirement of L.A.R. 109.2(a),” which requires that
counsel: “(1) demonstrate[] to this Court that [he] has thoroughly examined the record in
1 The District Court had jurisdiction under 18 U.S.C. § 3231 and 48 U.S.C. § 1612(a), and we have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s sentence for reasonableness under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). If a defendant failed to object to an issue before the district court, we review that issue for plain error, which requires the defendant to “prove that there was an error; that the error was plain; that it prejudiced his substantial rights; and that not correcting the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings.” United States v. Brito, 979 F.3d 185, 190 (3d Cir. 2020). 2 search of appealable issues, and (2) explain[] why those issues are frivolous.” United
States v. Langley, 52 F.4th 564, 569 (3d Cir. 2022). We next determine “whether an
independent review of the record presents any non-frivolous issues.” Id. Defense
counsel’s 24-page Anders brief reflects a good-faith, conscientious examination of the
District Court record. However, after conducting an independent review of the record,
we agree with the Government that the District Court erred in sentencing Tumbaco to 5
years of supervised release.
A. Guilty Plea and 120-Month Prison Sentence
As defense counsel argues in his Anders brief, there are no non-frivolous
appealable issues with respect to Tumbaco’s guilty plea or his sentence of 120 months in
prison.
First, a guilty plea is valid if it is “done voluntarily, knowingly, and intelligently,
‘with sufficient awareness of the relevant circumstances and likely consequences.’”
Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (quoting Brady v. United States, 397 U.S.
742, 748 (1970)). The District Court record confirms that these requirements were met.
During Tumbaco’s sentencing, the Court explained each individual count, as well as the
various consequences of a guilty plea on each count. It then ensured that Tumbaco
understood these consequences and was entering a guilty plea voluntarily and
intelligently.
Second, Tumbaco’s 120-month prison sentence was procedurally and
substantively reasonable. When a defendant challenges his sentence, we first “ensure that
3 the district court committed no significant procedural error.”2 Langley, 52 F.4th at 576
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). If there are no procedural errors,
we next determine whether the sentence was substantively reasonable under the totality
of the circumstances. Id.
The District Court did not commit any procedural errors in sentencing Tumbaco to
120 months in prison. The Court correctly calculated a final offense level of 36 and
arrived at a Guidelines range of 188-235 months of imprisonment. The District Court
then meaningfully considered the factors outlined in 18 U.S.C. § 3553(a), extensively
discussing Tumbaco’s role in the offense and any potential disparities between his
sentence and the sentences of his co-defendants. Based on those factors, the Court
sentenced Tumbaco to 120 months in prison, which was well below the Guidelines range.
Tumbaco’s prison sentence was also substantively reasonable. A sentence is
substantively reasonable “unless no reasonable sentencing court would have imposed the
same sentence on that particular defendant for the reasons the district court provided.”
Id. (quoting United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009)). Here, the District
Court acknowledged that it was sentencing Tumbaco to a prison term longer than the
terms of his co-defendants, but explained that this disparity was justified in light of
Tumbaco’s role as captain of the illegal vessel. And the 120-month sentence that
2 In the sentencing context, procedural errors include “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” United States v. Azcona- Polanco, 865 F.3d 148, 152 (3d Cir. 2017) (quoting United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009)). 4 Tumbaco received still fell below the correctly calculated Guidelines range. See United
States v. Woronowicz, 744 F.3d 848, 852 (3d Cir. 2015) (explaining that sentences within
the correct Guidelines range are more likely to be reasonable than those outside the
range). The Court thus demonstrated considerable leniency, and we cannot say that “no
reasonable sentencing court would have imposed the same sentence.” Langley, 52 F. 4th
at 576 (quoting Tomko, 562 F.3d at 568).
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No. 22-1898 _______________
UNITED STATES OF AMERICA
v.
CALIXTO TUMBACO, Appellant _______________
On Appeal from the District Court of the Virgin Islands (D.C. No. 3:19-cr-00039-004) Chief District Judge: Honorable Robert A. Molloy _______________
Submitted Under Third Circuit L.A.R. 34.1(a) on December 12, 2023
Before: HARDIMAN, KRAUSE, and RENDELL, Circuit Judges
(Filed: December 22, 2023)
_______________
OPINION* _______________
* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. KRAUSE, Circuit Judge.
Calixto Tumbaco appeals the District Court’s judgment of sentence, which
imposed terms of 120 months in prison and 5 years of supervised release. His counsel
has moved to withdraw under Third Circuit L.A.R. 109.2 and Anders v. California, 386
U.S. 738 (1967), claiming that there are no non-frivolous grounds for appeal. The
Government agrees that there are no non-frivolous issues with respect to Tumbaco’s 120-
month prison sentence or his underlying guilty plea. In an unusual twist, however, the
Government concedes that remand is appropriate because the District Court erred in
imposing the 5-year term of supervised release. We agree. Accordingly, we will deny
counsel’s motion to withdraw and affirm Tumbaco’s conviction, but will vacate the
supervised-release portion of his sentence and remand for re-sentencing on that portion
only.
I. DISCUSSION1
When confronted with an Anders brief, we first ask “whether counsel’s brief in
support of [his] motion fulfills the requirement of L.A.R. 109.2(a),” which requires that
counsel: “(1) demonstrate[] to this Court that [he] has thoroughly examined the record in
1 The District Court had jurisdiction under 18 U.S.C. § 3231 and 48 U.S.C. § 1612(a), and we have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s sentence for reasonableness under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). If a defendant failed to object to an issue before the district court, we review that issue for plain error, which requires the defendant to “prove that there was an error; that the error was plain; that it prejudiced his substantial rights; and that not correcting the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings.” United States v. Brito, 979 F.3d 185, 190 (3d Cir. 2020). 2 search of appealable issues, and (2) explain[] why those issues are frivolous.” United
States v. Langley, 52 F.4th 564, 569 (3d Cir. 2022). We next determine “whether an
independent review of the record presents any non-frivolous issues.” Id. Defense
counsel’s 24-page Anders brief reflects a good-faith, conscientious examination of the
District Court record. However, after conducting an independent review of the record,
we agree with the Government that the District Court erred in sentencing Tumbaco to 5
years of supervised release.
A. Guilty Plea and 120-Month Prison Sentence
As defense counsel argues in his Anders brief, there are no non-frivolous
appealable issues with respect to Tumbaco’s guilty plea or his sentence of 120 months in
prison.
First, a guilty plea is valid if it is “done voluntarily, knowingly, and intelligently,
‘with sufficient awareness of the relevant circumstances and likely consequences.’”
Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (quoting Brady v. United States, 397 U.S.
742, 748 (1970)). The District Court record confirms that these requirements were met.
During Tumbaco’s sentencing, the Court explained each individual count, as well as the
various consequences of a guilty plea on each count. It then ensured that Tumbaco
understood these consequences and was entering a guilty plea voluntarily and
intelligently.
Second, Tumbaco’s 120-month prison sentence was procedurally and
substantively reasonable. When a defendant challenges his sentence, we first “ensure that
3 the district court committed no significant procedural error.”2 Langley, 52 F.4th at 576
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). If there are no procedural errors,
we next determine whether the sentence was substantively reasonable under the totality
of the circumstances. Id.
The District Court did not commit any procedural errors in sentencing Tumbaco to
120 months in prison. The Court correctly calculated a final offense level of 36 and
arrived at a Guidelines range of 188-235 months of imprisonment. The District Court
then meaningfully considered the factors outlined in 18 U.S.C. § 3553(a), extensively
discussing Tumbaco’s role in the offense and any potential disparities between his
sentence and the sentences of his co-defendants. Based on those factors, the Court
sentenced Tumbaco to 120 months in prison, which was well below the Guidelines range.
Tumbaco’s prison sentence was also substantively reasonable. A sentence is
substantively reasonable “unless no reasonable sentencing court would have imposed the
same sentence on that particular defendant for the reasons the district court provided.”
Id. (quoting United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009)). Here, the District
Court acknowledged that it was sentencing Tumbaco to a prison term longer than the
terms of his co-defendants, but explained that this disparity was justified in light of
Tumbaco’s role as captain of the illegal vessel. And the 120-month sentence that
2 In the sentencing context, procedural errors include “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” United States v. Azcona- Polanco, 865 F.3d 148, 152 (3d Cir. 2017) (quoting United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009)). 4 Tumbaco received still fell below the correctly calculated Guidelines range. See United
States v. Woronowicz, 744 F.3d 848, 852 (3d Cir. 2015) (explaining that sentences within
the correct Guidelines range are more likely to be reasonable than those outside the
range). The Court thus demonstrated considerable leniency, and we cannot say that “no
reasonable sentencing court would have imposed the same sentence.” Langley, 52 F. 4th
at 576 (quoting Tomko, 562 F.3d at 568).
Moreover, none of the three grounds for appeal set forth in Tumbaco’s pro se brief
establish a non-frivolous issue. First, Tumbaco claims that the District Court failed to
comply with Federal Rule of Criminal Procedure 32(i)(1)(A), which requires district
courts to verify that defendants and their counsel have read and discussed the presentence
report before sentencing. However, the transcript of the sentencing hearing confirms that
Tumbaco’s allegation is plainly false, as the District Court explicitly confirmed before
sentencing that Tumbaco’s counsel had reviewed the presentence report with his client.
Second, Tumbaco says that the District Court erred because it did not adequately
apply the “safety valve” provision under Sentencing Guideline § 5C1.2 and 18 U.S.C.
§ 3553(f), which subjects certain qualified criminal defendants to lesser penalties if they
furnish truthful information about their offenses. Again, however, the record contradicts
Tumbaco’s assertion. The District Court correctly recognized that Tumbaco qualified for
the “safety valve” provision and reduced his sentence accordingly.
Finally, Tumbaco argues that the District Court erred by not providing him with a
hearing after he “indicated dissatisfaction with the representation provided” by his
attorney at the time. Tumbaco Br. 3. However, there is no indication that Tumbaco ever
5 asked for a hearing on this issue before the District Court ruled on his attorney’s motion
to withdraw, and Tumbaco does not explain why the Court was legally required to
provide him with such a hearing. When the Court learned of Tumbaco’s dissatisfaction
with his trial counsel, it did exactly what Tumbaco wanted—it granted counsel’s motion
to withdraw and appointed new counsel to represent Tumbaco at sentencing.
B. Supervised Release
Though defense counsel is correct that there are no non-frivolous issues with
Tumbaco’s guilty plea or his 120-month prison sentence, remand is appropriate because
the District Court erred in imposing a 5-year term of supervised release. The District
Court imposed this term of supervised release because it determined that it was the
minimum term mandated by Tumbaco’s statute of conviction. But this determination
was plain error. A defendant who qualifies for the “safety valve” provision under
Sentencing Guideline § 5C1.2 “is not subject to any statutory minimum sentence of
supervised release.” U.S.S.G. § 5D1.2, cmt. n. 2; see also Pepper v. United States, 562
U.S. 476, 481 n.1 (2011) (citing 18 U.S.C. § 3553(f)). Here, the District Court
determined that Tumbaco qualified for the “safety valve” provision, but incorrectly
believed that “the statute requires an imposition of a [5-year] term of supervised release.”
App. 59, 79. The Court’s error prejudiced Tumbaco’s substantive rights and affected the
fairness of his sentencing proceeding because it resulted in a longer term of supervised
release than he might have received had the Court correctly applied the “safety valve”
provision.
6 II. CONCLUSION
For the foregoing reasons, we will affirm Tumbaco’s conviction, vacate the
supervised-release portion of his sentence, and remand to the District Court for re-
sentencing with respect to supervised release. In view of this disposition, counsel’s
motion to withdraw will be denied.