United States v. Dylan Ianncelli

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 22-3292

UNITED STATES OF AMERICA,

v.

DYLAN IANNCELLI,

Appellant

Appeal from the United States District Court for the District of New Jersey (District Court No.: 1-22-cr-00176-001) District Judge: Honorable Joseph H. Rodriguez

Submitted Under Third Circuit L.A.R. 34.1(a) on January 18, 2024

Before: JORDAN, BIBAS, and AMBRO, Circuit Judges

(Opinion Filed: January 24, 2024) OPINION*

AMBRO, Circuit Judge

Dylan Ianncelli appeals the sentence he received following a guilty plea to two

counts charging him with conspiring to engage in the unlicensed dealing of firearms and

possessing a firearm as a convicted felon. His counsel has filed an Anders brief, stating

there are no nonfrivolous issues for review and seeking to withdraw from representing

him on that basis. Anders v. California, 386 U.S. 738 (1967). Ianncelli has submitted a

pro se brief raising two issues: ineffective assistance of counsel and the allegedly

incorrect calculation of his criminal history category. For the reasons that follow, we

agree there are no nonfrivolous issues on appeal; thus, we affirm and grant the request to

withdraw.

Before the District Court, Ianncelli waived indictment and entered a guilty plea to

the following counts: 1) conspiring to engage in the unlicensed dealing of firearms, in

violation of 18 U.S.C. § 922(a)(1)(A), along with making false statements in connection

with the purchase of a firearm, in violation of 18 U.S.C. § 922(a)(6)—both in violation of

18 U.S.C. § 371 (Count I); and 2) possessing firearms as a convicted felon, in violation of

18 U.S.C. § 922(g)(1) (Count II).

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

2 Ianncelli’s plea agreement specified that Count I carried a statutory maximum

sentence of five years, Count II carried a statutory maximum of ten years, and these

sentences could run consecutively.

During the plea hearing, the District Court engaged in a thorough Rule 11

colloquy. Fed. R. Cr. P. 11. Ianncelli confirmed his plea was voluntary and stated that

he understood, under the terms of his plea agreement, he was giving up his right to appeal

his sentence if it fell within the United States Sentencing Guidelines range for an offense

level of 29 (with the exception of an appeal of his criminal history category calculation).

Under the Guidelines, Ianncelli was assigned a total offense level of 29 and a

criminal history category of VI, meaning his sentencing range was 151-188 months. But

because the statutorily authorized maximum sentence was 180 months, the applicable

Guidelines range was lowered to 151-180 months. See U.S.S.G. § 5G1.2(b).

The District Court sentenced Ianncelli to the lowest end of that range: 151 months

of imprisonment (51 months on Count I and 100 months on Count II, to run

consecutively). He also received two three-year terms of supervised release, to run

concurrently. Ianncelli nonetheless appealed to us, whereupon his counsel filed an

Anders brief stating there are no nonfrivolous issues for review and seeking to withdraw

from representing him.1 Ianncelli submitted a pro se brief in response, as permitted under

our Local Rules. L.A.R. 109.2(a).

1 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

3 We agree with Ianncelli’s counsel that there are no nonfrivolous issues on appeal.2

As a preliminary matter, Ianncelli knowingly and voluntarily entered into a guilty plea,

the terms of which prevent him from appealing his sentence (which is within the agreed-

upon Guidelines range) except as to the calculation of his criminal history category.

In his pro se brief, Ianncelli raises two issues: ineffective assistance of counsel and

the allegedly inaccurate calculation of his criminal history category. Neither provides a

ground for altering his sentence. For his ineffective-assistance claim, Ianncelli contends

his counsel influenced him to take a plea by stating the greatest sentence he could receive

was ten years when in fact it was fifteen years. Ianncelli also alleges that his counsel did

not argue at sentencing that his criminal history category was calculated incorrectly. For

the former, erroneous sentencing predictions by defense counsel generally are not

ineffective assistance where, as here, an adequate plea hearing was conducted. See

United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007) (listing cases). Here, the

District Court asked Ianncelli if he understood the terms of his plea agreement

immediately after the Government stated it provided a maximum possible sentence of

fifteen years. App. 17. As to the criminal history calculation, Ianncelli’s counsel did

argue the criminal history category was incorrectly calculated at sentencing. App. 34-36.

2 Ianncelli’s counsel has filed a brief that fulfills his Anders obligations by thoroughly examining the record, identifying the issues arguably supporting the appeal, and explaining why those issues are frivolous. See United States v. Langley, 52 F.4th 564, 574 (3d Cir. 2022). Accordingly, we review the record, guided by his counsel’s brief, in search of any nonfrivolous issues. See id. at 575. We have also considered the issues raised in Ianncelli’s pro se response brief to inform our review, although that review is not required where an Anders brief is adequate. Id. 4 On the substance of his criminal history calculation, Ianncelli argues that four

prior convictions, which were treated separately under U.S.S.G. § 4A1.2(a)(2), should

instead have been treated as a single sentence, which would have resulted in a lower

criminal history subtotal. He relies on the fact he was sentenced for each of the four

convictions on the same date.

Like the District Court, we reject this argument because, as Ianncelli’s counsel

notes in his Anders brief, there were intervening arrests between each of the four

offenses. U.S.S.G. § 4A1.2(a)(2) (“Prior sentences always are counted separately if

[they] were imposed for offenses that were separated by an intervening arrest (i.e., the

defendant is arrested for the first offense prior to committing the second offense).”).

Accordingly, we affirm Ianncelli’s sentence and grant his counsel’s motion to

withdraw.3

3 Because the issues presented lack legal merit, there is no requirement for Ianncelli’s counsel to file a petition for writ of certiorari to the United States Supreme Court. L.A.R. 109.2(b). 5