UNITED STATES of America v. Quincy L. JONES a/k/a Q, Quincy L. Jones, Appellant, 176 F. App'x 322

OPINION AMBRO, Circuit Judge Quincy Jones pled guilty to one count of conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(l)(A)(ii), and was sentenced to a 78-month term of incarceration. Jones’ counsel filed an Anders motion to withdraw as counsel, asserting that all potential grounds for appeal are frivolous. For the reasons set forth below, we grant that motion and affirm the judgment of the District Court. I. Under Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), if counsel “finds [a] case to be wholly frivolous, after a conscientious examination” of the potential grounds for appeal, s/he should “advise the court and request permission to withdraw.” Id. at 744, 87 S.Ct. 1396. This request must be accompanied by “a brief referring to anything in the record that might arguably support the appeal,” id., “explaining] to the court why the issues are frivolous,” United States v.

Marvin, 211 F.3d 778, 781 (3d Cir.2000), and demonstrating that s/he has “thoroughly scoured the record in search of appealable issues,” id. at 780. A copy of counsel’s brief must be furnished to the appellant, who must be given time to raise nonfrivolous arguments in a pro se brief. Anders, 386 U.S. at 744, 87 S.Ct. 1396; Third Circuit LAR 109.2(a) (2000). We “confine our scrutiny to those portions of the record identified by an adequate Anders brief ... [and] those issues raised in Appellant’s pro se brief.” United States v. Youla, 241 F.3d 296, 301 (3d Cir.2001).

We do not “comb the record ... for possible nonfrivolous issues that both the lawyer and his client may have overlooked,” as “[our] duty is merely to determine whether counsel is correct in believing those grounds [raised are] frivolous.” United States v. Wagner, 103 F.3d 551, 552-53 (7th Cir.1996). We grant counsel’s Anders motion to withdraw if we believe “that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim,” McCoy v.

Court of Appeals of Wisconsin, 486 U.S. 429, 442, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988), and if we conclude “that the appeal lacks any basis in law or fact,” id. at 438 n. 10, 108 S.Ct. 1895. II. Our review of the record confirms counsel’s assessment that there are no nonfrivolous issues for appeal. In response to his presentence report, Jones argued that two of his prior state court convictions were related to the offense conduct at issue here, and thus should be excluded from his criminal history calculation.

Jones had been convicted of delivery of a controlled substance in 1996 and possession of a controlled substance in 1998. His offense here, however, occurred in May 2001. Clearly, conduct that occurred in 1996 and 1998 predates a May 2001 offense behavior, and is properly considered prior criminal conduct for the purpose of determining Jones’ criminal history category. Because there are no nonfrivolous issues for appeal, Jones’ judgment of conviction and sentence is hereby affirmed, and counsel mil be granted leave to withdraw.