No: 03-1603 UNITED STATES OF AMERICA v. Dahelak Bereket Manna

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No: 03-1603
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UNITED STATES OF AMERICA,
v.
DAHELAK BEREKET MANNA,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 02-cr-00569)
District Judge: Honorable Franklin S. VanAntwerpen
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Submitted Under Third Circuit LAR 34.1(a)
February 25, 2004
BEFORE: RENDELL, BARRY and
FISHER, Circuit Judges
(Filed March 11, 2004)
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Appellant-defendant Dahelak Bereket Manna (“Manna”) pled guilty to armed bank
robbery in violation of 18 U.S.C. § 2113(d) and using a firearm during and in relation to a
crime of violence in violation of 18 U.S.C. § 924(c). Manna asserts several arguments on

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1 We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2 The bank had reported that Manna had stolen approximately $19,111 in cash.
2
appeal, ranging from challenges to the district court’s application of certain enhancements
under the Sentencing Guidelines to constitutional attacks on §§ 924(c) and 2113(d).
Manna’s appellate counsel has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), seeking to withdraw as Manna’s counsel on the ground that Manna has
no non-frivolous issues to raise on appeal. Because none of the contentions raised by
Manna, or otherwise highlighted by counsel, has any legal merit, we will grant counsel’s
motion to withdraw pursuant to Anders, and affirm Manna’s guilty plea and sentence.1
I.
On the afternoon of August 9, 2003, Manna entered the Lafayette Ambassador
Bank in Bethlehem, Pennsylvania, leaped over the tellers’ counter, and threatened to
shoot the four present tellers if they did not keep their heads down. Manna took cash
from the tellers’ stations and fled from the bank. Within ten minutes of the robbery, and
only one-half mile from the bank, police apprehended Manna. Police recovered the
backpack in which Manna carried the stolen cash; it contained $18,866 in cash,2 as well
as a loaded Ruger .357 caliber revolver. Five hours after his arrest, and following the
reading of his Miranda warnings, Manna orally confessed to police officers that he had
robbed the bank.

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3
A grand jury in the Eastern District of Pennsylvania indicted Manna on one count
of armed bank robbery in violation of 18 U.S.C. § 2113(d) (“Count One”) and one count
of using and carrying a firearm during and in relation to a crime of violence in violation
of 18 U.S.C. § 924(c)(1)(A)(ii) (“Count Two”). Manna pled guilty to both Counts. The
district court sentenced Manna to 48 months incarceration on Count One and, because he
had brandished a firearm during the armed robbery, to 84 months incarceration on Count
Two, the mandatory minimum under 18 U.S.C. § 924(c)(1)(A)(ii). The sentence for
Count Two was to be served consecutively to the sentence imposed for Count One. The
district court also imposed a term of supervised release of five years, a special assessment
of $200, and restitution of $300 to the victim bank.
Manna filed a timely notice of appeal.
II.
In reviewing an Anders brief, we ask (1) whether counsel adequately represented
the client’s case, and (2) whether an independent review of the record presents any non-
frivolous issues. United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). “The duties
of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has
thoroughly examined the record in search of appealable issues, and (2) to explain why the
issues are frivolous.” Youla, 241 F.3d at 300 (citation omitted). Our “inquiry when
counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled
the rule’s requirements; and (2) whether an independent review of the record presents any
nonfrivolous issues.” Id. (citations omitted). Where a case is wholly frivolous, we “can

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3 As Manna’s counsel points out, the first two categories of unwaived objections noted
in Broce are inapplicable here because the district court clearly had jurisdiction to accept
Manna’s guilty plea, see 18 U.S.C. § 3231, and the guilty plea was valid, knowing and
voluntary under Fed. R. Crim. P. 11 and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709
(1969). The record amply supports counsel’s assertions, and Manna does not argue to the
contrary.
4
grant counsel’s motion to withdraw and dismiss the appeal under federal law, or proceed
to a decision on the merits if state law so requires.” Id. at 299 (citation omitted). We
confine our review “to those portions of the record identified by an adequate Anders brief
... [and] those issues raised in Appellant’s pro se brief.” Id. at 300.
As a result of entering an unconditional guilty plea to the two Counts, Manna
waived all possible claims for appellate relief except (1) a claim that the court lacked
jurisdiction to accept the plea, (2) a claim that the plea is invalid, as judged by applicable
statutory and constitutional standards, and (3) a claim that the sentence imposed for the
offenses is illegal. See United States v. Broce, 488 U.S. 563 (1989).3 To the extent
Manna’s guilty plea does not foreclose the objections he raises here, such objections are
reviewed by this Court for “plain error” in accordance with Fed. R. Crim. P. 52(b).
United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770 (1993). Under plain error
review, this Court may only grant relief if (1) the district court committed an error,
(2) such error was plain, and (3) the plain error affected the “substantial rights” of the
defendant. Id. In order for an error to affect “substantial rights,” it must have been
“prejudicial,” i.e., “it must have affected the outcome of the district court proceedings.”
Olano, 507 U.S. at 734, 113 S.Ct. 1770. We will correct a plain error only if it “seriously

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5
affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. at 732
(internal quotation marks and citations omitted).
III.
On appeal, Manna asserts seven challenges to his guilty plea and sentence: (1) that
the imposition of separate, consecutive sentences for armed bank robbery and brandishing
a firearm during the armed bank robbery violated the Double Jeopardy Clause of the
United States Constitution; (2) that the enhanced sentence for brandishing a firearm under
18 U.S.C. § 924(c) was flawed because the indictment failed to allege that Manna
brandished a firearm; (3) that §§ 924(c) and 2113(d), at least as applied to Manna, are
unconstitutional exercises of Congress’s Commerce Clause power; (4) that the district
court’s enhancement of Manna’s armed bank robbery sentence pursuant to U.S.S.G. §
2B3.1(b)(1) for taking the property of a financial institution violated the Double Jeopardy
Clause of the United States Constitution; (5) that the district court erred by imposing the
two-year enhancement for brandishing under § 924(c) instead of the enhancement for
brandishing under U.S.S.G. § 2B3.1(b)(2)(C); (6) that the district court erred by failing to
apply the acceptance of responsibility reduction pursuant to U.S.S.G. § 3E1.1 to Manna’s
§ 924(c) sentence; and (7) that the district court erred by enhancing Manna’s sentence for
armed bank robbery pursuant to U.S.S.G. § 2B3.1 because the victimized financial
institution suffered “loss” of greater than $10,000, where all but $300 of the stolen funds
were recovered by the bank. Manna’s counsel asserts one additional, possible contention
– that the district court’s failure to verify that Manna and his trial counsel read and

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4 We lack jurisdiction to consider any challenge to the district court’s refusal to grant
Manna’s request for a downward departure because the district court recognized its power
to depart downward, but exercised its discretion not to. See United States v. Stevens, 223
F.3d 239, 247 (3d Cir. 2000) (“if the district court’s ruling [i.e., the refusal to depart
downward] was based on an exercise of discretion, we lack jurisdiction.”) (citation
omitted). In any event, Manna does not suggest that the district court’s refusal to grant
his downward departure request was erroneous.
6
discussed the pre-sentence investigation report (“PSR”) in violation of Fed. R. Crim. P.
32(i)(1)(A) entitles Manna to relief.4
A.
Manna argues that the imposition of separate, consecutive sentences for armed
bank robbery under 18 U.S.C. § 2113(d) and brandishing a firearm during and in relation
to an armed bank robbery under 18 U.S.C. § 924(c) violates the Double Jeopardy Clause.
Manna relies primarily on the Supreme Court’s decisions in Simpson v. United States,
435 U.S. 6, 98 S.Ct. 909 (1978) and Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747
(1980). Indeed, in Simpson, the Court held that a single instance of armed bank robbery
could not support charges under both 18 U.S.C. § 2113(d) and 924(c). Simpson, 435 U.S.
at 16. The Simpson Court stressed that even though § 924(c) made clear that a sentence
for its violation was to be “in addition to” punishment imposed for the underlying
predicate offense, this statement failed to express with sufficient clarity that cumulative
punishment should be imposed under § 924(c) where the statute creating the underlying
predicate offense provided for an enhancement where a dangerous weapon was used.
Simpson, 435 U.S. at 8. See also Busic, 446 U.S. at 404 (“prosecution and enhanced

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5 Manna also invokes the Supreme Court’s decisions in Blockburger v. United States,
284 U.S. 299, 52 S.Ct. 180 (1932), City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct.
2157 (1997) and Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326 (2000), in
support of this Double Jeopardy argument. But Blockburger’s rule for detecting a Double
Jeopardy violation is inapplicable where, as here, Congress “specifically authorizes
cumulative punishment under two statutes... .” Missouri v. Hunter, 459 U.S. 359, 368,
103 S.Ct. 673, 679 (1983). Dickerson and Flores are presumably (Manna does not
explain precisely why) cited for the proposition that Congress may not override
7
sentencing under § 924(c) is simply not permissible where the predicate felony statute
contains its own enhancement provision.”).
The Supreme Court has since recognized, however, that a Congressional
amendment to § 924(c) in 1984 abrogated Simpson and Busic on this issue. See United
States v. Gonzales, 520 U.S. 1, 10, 117 S.Ct. 1032, 1037 (1997). The 1984 amendment
clarified Congress’s “desire to run § 924(c) enhancements consecutively to all other
prison terms, regardless of whether they were imposed under firearms enhancement
statutes similar to § 924(c).” Gonzales, 520 U.S. at 10, 117 S.Ct. at 1037-38. As such,
“Congress thus repudiated the result we reached in Busic v. United States... .” Id. (noting
that the amendment abrogated Simpson as well). See also United States v. Bishop, 66
F.3d 569, 574 (3d Cir. 1995) (separate, consecutive sentences under federal carjacking
statute (18 U.S.C. § 2119) and § 924(c) did not violate Double Jeopardy Clause because
“legislative intent to impose a consecutive sentence for the violation of section 924(c) is
plain from the language of that provision”). Accordingly, M anna’s contention that a
separate, consecutive sentence under § 924(c) infringed the Double Jeopardy Clause is
without merit.5

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constitutional rights and strictures by simple legislation, see Dickerson, 530 U.S. at 437,
120 S.Ct. at 2332-33, a proposition Manna would presumably advance in support of his
view that Congress’s 1984 amendment of § 924(c) ran afoul of the Double Jeopardy
Clause. Because the “Double Jeopardy Clause does no more than prevent the sentencing
court from prescribing greater punishment than the legislature intended[,]” Hunter, 459
U.S. at 366, however, Congress did not violate the Double Jeopardy Clause by expressly
authorizing punishment for a Section 924(c) offense separate from that for the underlying
predicate offense.
8
B.
Manna argues that he is entitled to relief with respect to the § 924(c) offense
because the indictment failed to allege that Manna brandished a firearm during and in
relation to the armed bank robbery. Manna’s counsel correctly characterizes this
contention as one seeking relief under Apprendi v. New Jersey, 530 U.S. 466 (2000),
where the Supreme Court held that “any fact that increases the penalty for a crime beyond
the prescribed statutory maximum ... must be submitted to a jury, and proved beyond a
reasonable doubt.” Apprendi, 530 U.S. at 490. This contention is meritless, however,
because the Supreme Court recently made plain that “brandishing” for purposes of §
924(c) “need not be alleged in the indictment, submitted to the jury, or proved beyond a
reasonable doubt” because brandishing is a sentencing factor that does not increase the
penalty for a crime beyond the prescribed statutory maximum. Harris v. United States,
536 U.S. 545, 568 (2002). See also United States v. Parmelee, 319 F.3d 583, 591 (3d Cir.
2003) (“In those cases in which a sentencing factor or enhancement does not increase the
penalty for a crime beyond the prescribed statutory maximum, Apprendi is not implicated

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6 Manna’s guilty plea does not foreclose his constitutional challenge because the issue
of a statute’s constitutionality “goes to the jurisdiction of the district court.” Bishop, 66
F.3d at 572 n. 1 (citing Menna v. New York, 423 U.S. 61, 62 n. 1, 96 S.Ct. 241, 242 n. 1
(1975) and Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 2103-04 (1974)).
7 “[C]ongressional acts are entitled to a ‘presumption of constitutionality,’ and will
only be invalidated upon a ‘plain showing that Congress has exceeded its constitutional
bounds.’” United States v. Whited, 311 F.3d 259, 266 (3d Cir. 2002) (quoting United
States v. Morrison, 529 U.S. 598, 607 (2000)). “In the particular context of the
Commerce Clause, we have frequently framed our inquiry as the narrow one of whether
Congress had a ‘rational basis’ for concluding that the activity it was regulating ... was
sufficiently related to interstate commerce to support the statute’s constitutionality.” Id.
at 267 (citations omitted).
9
and the facts supporting the sentencing factor or enhancement need not be charged in an
indictment or submitted to a jury”) (quoting Harris, 536 U.S. at 564-65).
C.
Manna’s broadest challenge is his constitutional attack on 18 U.S.C. § 924(c) and
§ 2113(d).6 Manna indicates that the two statutes, at least as applied to him, are
unconstitutional exercises of Congress’s power under the Commerce Clause, U.S. Const.
Art. 1, § 8, cl. 3. Manna’s constitutional arguments do not survive this Court’s deferential
scrutiny of Congress’s exercise of its Commerce Clause power.7
We have already rejected a Commerce Clause challenge to § 2113, see United
States v. Spinello, 265 F.3d 150 (3d Cir. 2001), thereby foreclosing Manna’s Commerce
Clause challenge to § 2113. Although we have not yet definitively ruled on the
constitutionality under the Commerce Clause of § 924(c) in this context (and we do not
do so in this not-precedential opinion), the decisions of our sister circuits upholding §

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10
924(c)’s constitutionality in similar circumstances seem eminently correct. See United
States v. Ricketts, 317 F.3d 540 (6th Cir. 2003) (upholding application of § 924(c) to
underlying predicate offense of use of firearm in connection with a drug conspiracy)
(citing cases); United States v. Brown, 72 F.3d 96 (8th Cir. 1995) (upholding application
of § 924(c) to underlying predicate offense of use of firearm in connection with a drug
trafficking offense). Section 924(c) is not a “free-standing” statute, but rather applies
where certain felonies committed in violation of other federal statutes involve the use of a
firearm. See Ricketts, 317 F.3d at 543. Here, § 924(c) is applied to an armed bank
robbery committed in violation of 18 U.S.C. § 2113(d). As noted above, this Court has
held that armed bank robbery in violation of § 2113 substantially affects interstate
commerce, thus establishing the constitutionality of § 2113 under the Commerce Clause.
As a result, application of § 924(c) based on the predicate offense of armed bank robbery
satisfies the Commerce Clause as well. See Brown, 72 F.3d at 97 (noting that because §
924(c) conviction was “based on [defendant’s] section 841(a)(1) drug trafficking offense,
which involved ‘an activity that substantially affect[ed] interstate commerce,’ we reject
[defendant’s] Lopez challenge” to his § 924(c) conviction).
D.
Manna raises four challenges to the district court’s application of the Sentencing
Guidelines. First, Manna suggests that the Double Jeopardy Clause precluded the district
court from enhancing his sentence for armed bank robbery under U.S.S.G. § 2B3.1's
enhancement for taking the property of a financial institution. Section 2B3.1(b)(1)

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8 Moreover, because § 2B3.1 applies to all robberies, the specific crime of armed bank
robbery would not be expressly “accounted for without the two-level enhancement” under
§ 2B3.1(b)(1).
11
requires a two-level enhancement of all robbery sentences where “the property of a
financial institution ... was taken ... .” U.S.S.G. § 2B3.1(b)(1). Manna contends that a §
2B3.1 enhancement to a sentence for armed bank robbery is impermissible because the
fact that property was taken from a financial institution is already an element of armed
bank robbery, and therefore cannot be used as a sentencing enhancement factor. It is
clear in this Circuit, however, that a “court must make all applicable, mandatory
adjustments unless the Guidelines specifically exempt the particular conduct at issue.”
United States v. Johnstone, 107 F.3d 200, 212 (3d Cir. 1997) (citing U.S.S.G. § 1B1.1(b),
which provides that the court must “[d]etermine the base offense level and apply any
appropriate specific offense characteristics ... contained in the particular guideline in
Chapter Two.”); United States v. Wong, 3 F.3d 667, 671 (3d Cir. 1993) (“an adjustment
that clearly applies to the conduct of an offense must be imposed unless the Guidelines
exclude its applicability.”). Because neither § 2B3.1, nor the Guidelines generally,
expressly forbids enhancing an armed bank robbery sentence where property was taken
from a financial institution, the district court’s § 2B3.1(b)(1) enhancement of Manna’s
armed bank robbery sentence was entirely appropriate.8
E.

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12
Manna next argues that the district court erroneously imposed § 924(c)(1)(A)(ii)’s
enhancement for brandishing a firearm instead of the brandishing enhancement set forth
in U.S.S.G. § 2B3.1(b)(2)(C). But once the district court found that Manna had
brandished a firearm, it was compelled by the mandatory language of § 924(c)(1)(A)(ii)
to impose the statutory enhancement for brandishing, and had no discretion to opt instead
for the brandishing enhancement under the Guidelines . See 18 U.S.C. § 924(c)(1)(A)(ii)
(persons who use or carry a firearm “during and in relation to any crime of violence ...
shall, in addition to the punishment provided for such crime of violence ... if the firearm
is brandished, be sentenced to a term of imprisonment of not less than 7 years”)
(emphasis added).
F.
Manna’s third challenge to his sentence is that the district court improperly failed
to apply the acceptance of responsibility reduction under U.S.S.G. § 3E1.1 to the § 924(c)
offense. However, the Guidelines unambiguously provide that Chapter Three, including
§ 3E1.1, “shall not apply to” a § 924(c) conviction. See U.S.S.G. § 2K2.4(b). The
Application Notes reinforce the inapplicability of Chapter 3 of the Guidelines to a §
924(c) sentence, stating that except where a § 924(c) conviction results in the defendant
being determined a career offender under § 4B1.1, “do not apply Chapter Three
(Adjustments) and Chapter Four (Criminal History and Criminal Livelihood) to any
offense sentenced under this guideline. Such offenses are excluded from application of
those chapters because the guideline sentence for each offense is determined only by the

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9 Other circuits, however, have addressed the issue, and have concluded that “loss”
under § 2B3.1 does not include amounts recovered or returned. See United States v.
McCarty, 36 F.3d 1349, 1361 (5th Cir. 1994); United States v. Parker, 903 F.2d 91 (2d
Cir. 1990).
13
relevant statute.” Id. at § 2K2.4 appl. note 5. As § 3E1.1 is set forth in Chapter 3, the
Guidelines clearly prohibit its application to a § 924(c) offense, thereby precluding
Manna’s argument here.
G.
Finally, M anna argues that the district court erred by applying U.S.S.G. §
2B3.1(b)(7)’s one-level enhancement where a robbery effects a “loss” of greater than
$10,000, but less than $50,000, because all but $300 of the stolen funds was recovered by
the bank. “Loss” is defined in Application Note 3 of § 2B3.1(b)(7) as “the value of the
property taken, damaged, or destroyed.” See U.S.S.G. § 2B3.1(b)(7) appl. note 3. Manna
suggests that although he stole more than $10,000 from the bank, the fact that the bank
ultimately recovered all but $300 of the stolen funds should preclude application of the
one-level “loss” enhancement under § 2B3.1(b)(7). Although we have not addressed this
precise issue,9 we have held in a related context that the amount of a “loss” is not reduced
by the amount of the original loss recovered prior to sentencing. See United States v.
Chiarelli, 898 F.2d 373 (3d Cir. 1990) (holding that “loss” for purposes of enhancing a
sentence for receipt and possession of stolen property pursuant to then-§ 2B1.2 should not
be reduced by the amount of the property recovered).

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10 As Manna’s counsel points out, the Sentencing Commission stated in Amendment
617, Appendix C, Guidelines Manual, that it intended that the definition of “loss”
previously contained in § 2B1.1 would still be used for purposes of § 2B3.1.
14
In Chiarelli, we relied on the commentary to § 2B1.1, which included an example
demonstrating that recovered property does not impact the amount of “loss.” Chiarelli,
898 F.2d at 384. Section 2B1.1 is particularly instructive in determining the meaning of
“loss” for purposes of calculating the sentence under § 2B3.1 for armed bank robbery
because, prior to amendments effective November 1, 2002, “loss” for purposes of § 2B3.1
was determined by reference to “the Commentary to § 2B1.1.” 10 Application Note 3(E)
to § 2B1.1 resolves this issue against Manna. Application Note (E) provides that “[l]oss
shall be reduced by ... money returned, and the fair market value of the property returned
and the services rendered, by the defendant or other persons acting jointly with the
defendant, to the victim before the offense was detected.” Id. at appl. note 3(D).
However, Note (E) goes on to state that “[t]he time of detection of the offense is the
earlier of (I) the time the offense was discovered by a victim or government agency; or
(II) the time the defendant knew or reasonably should have known that the offense was
detected or about to be detected by a victim or government agency.” Id. Manna’s armed
bank robbery was discovered by the victim bank simultaneous with its commission – the
bank and its employees were held up by the armed Manna, and the employees were
therefore eyewitnesses to his crime. Because, by definition, the recovered stolen funds
were not returned to the bank until after the robbery was committed and discovered, those

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11 It is not clear that the district court failed to verify under this Court’s interpretation
of Rule 32(i)(1)(A)’s requirement, which mandates only “functional fulfillment” of the
Rule, i.e., “that the district court ‘somehow determine that the defendant has had this
opportunity [to read the PSR and discuss it with counsel].’” Stevens, 223 F.3d at 241
(citing United States v. Mays, 798 F.2d 78, 80 (3d Cir. 1986)). As discussed below,
however, any violation of the Rule is a mere technical one that falls well short of plain
error.
15
funds cannot operate to reduce the amount of “loss” within the meaning of U.S.S.G.
2B3.1(b)(1).
H.
In dutifully executing its Anders obligation, counsel points out that the district
court arguably failed to verify that Manna and his trial counsel read and discussed the
PSR as required by Fed. R. Crim. P. 32(i)(1)(A). Even assuming that the district court
did in fact fail to verify that Manna and his trial counsel read and discussed the PSR,11
Manna has not – and upon our review of the record cannot – carry his burden of
demonstrating that the district court’s Rule 32 violation amounted to plain error. Indeed,
the Rule 32 violation here is much akin to the Rule violation we found not to be plain
error in Stevens, 223 F.3d 239. There, in concluding that defendant had failed to
demonstrate that he was prejudiced by the district court’s non-compliance with Rule 32,
we noted that “[t]he record reflect[ed] that the PSR was sent both to [defendant]
personally and to his counsel, and that thereafter and prior to sentencing defense counsel
filed a memorandum with the court discussing the PSR[.]” Stevens, 223 F.3d at 243. We
also pointed out that defendant’s original appellate brief and his reply both failed to

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16
indicate that he and his counsel had not received and read the PSR, and did not suggest
that defendant was prejudiced or that anything in the PSR was inaccurate. Id. at 243. In
rejecting defendant’s claim that the Rule 32 violation constituted a so-called “structural
defect,” we stressed that defendant had been represented by counsel before an impartial
judge, elements that create a “‘strong presumption’ against finding any other errors to be
structural defects[,]” and re-emphasized that defendant “was still able to make any and all
objections to the PSR, as well as the government’s arguments, and had the opportunity to
address the court before sentencing.” Id.
As in Stevens, Manna does not suggest in his pro se brief that he and his trial
counsel failed to read and discuss the PSR. In fact, the record plainly demonstrates that
Manna’s trial counsel did review the report, though the record does not clearly reveal
whether M anna and his trial counsel discussed the report. The record also reflects that, in
addition to reviewing the PSR, Manna’s trial counsel responded to it by requesting a
downward departure of the sentences set forth therein in correspondence to the district
court. Finally, and again as in Stevens, Manna has not asserted any claim of prejudice or
any inaccuracy in the PSR, the omission of which assertions was central in our conclusion
that prejudice was lacking in Stevens. In sum, Manna can show no prejudice, and
therefore no plain error, because he cannot demonstrate that the outcome before the
district court would have been different had the purported Rule 32 violation never
occurred. See United States v. Dixon, 308 F.3d 229, 234 (3d Cir. 2002) (in plain error
context, “defendant must prove that, were it not for the plain error committed by the

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17
district court at the time of his plea, the outcome of the proceedings would have been
different.”) (emphasis in original).
III.
Counsel’s Anders brief is sufficiently thorough and Manna has no non-frivolous
issue to raise on appeal. Accordingly, we grant counsel’s Anders motion to withdraw,
and affirm Manna’s guilty plea and sentence.

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