United States v. Sean Fryer ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-2411
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UNITED STATES OF AMERICA
v.
SEAN MICHAEL FRYER
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3:18-cr-00414-001)
District Judge: Honorable Robert D. Mariani
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 7, 2022
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Before: SHWARTZ, MATEY, and FUENTES, Circuit Judges.
(Filed: December 20, 2022)
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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.
MATEY, Circuit Judge.
Facing charges related to sexual crimes against children, Sean Fryer pleaded guilty
to online enticement in an agreement that waived his right to appeal his conviction and
sentence. Fryer appealed anyway and his counsel now moves to withdraw under Anders v.
California, 386 U.S. 738 (1967) and Third Circuit L.A.R. 109.2(a), arguing the appeal is
without merit. We agree and will grant the motion to withdraw and dismiss Fryer’s appeal.
I.
In computer chat sessions, using the moniker “Bad Boy,” Fryer shared images and
videos depicting sexually abused children and wrote messages describing his experience
molesting kids. Unbeknownst to Fryer, he was chatting with law enforcement. From the
fruits of subpoenas sent to the relevant parties, the FBI traced the “Bad Boy” username to
Fryer’s email, IP logs, and finally his home address. Fryer was arrested and pleaded guilty
to online enticement in violation of 18 U.S.C. § 2422(b) in exchange for a three-level
reduction in his offense level.
After consulting his attorney, Fryer signed a written plea agreement that he later
acknowledged in a plea colloquy. The plea agreement waived Fryer’s right to appeal his
conviction and sentence. Although the advisory range for Fryer’s offense was 210 to 262
months, Fryer’s counsel secured a downward variance to a sentence of 144 months.
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Fryer filed a notice of appeal several months after the deadline, and his appointed
counsel moved to withdraw in an Anders brief, stating that there were no nonfrivolous
grounds for review. 1
II.
A. The Anders Brief
Counsel appointed to represent a person accused of a crime may withdraw after a
conviction if there is nothing “in the record that might arguably support the appeal.”
Anders, 386 U.S. at 744. A motion to withdraw must show that counsel has “‘thoroughly
scoured the record in search of appealable issues’ and then ‘explain[ed] why the issues are
frivolous.’” United States v. Coleman, 575 F.3d 316, 319 (3d Cir. 2009) (quoting United
States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000)). In reviewing a motion to withdraw
accompanied by an Anders brief, we consider “1) whether counsel adequately fulfilled the
requirements of Third Circuit Local Appellate Rule 109.2(a), and 2) whether an
independent review of the record presents any nonfrivolous issues.” Simon, 679 F.3d at
114. “[I]f counsel has fulfilled her obligation under Anders, 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).
1
The District Court had jurisdiction under 18 U.S.C. § 3231 and we have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review the adequacy of
an Anders submission without deference but review factual findings for clear error. Simon
v. Gov’t of Virgin Islands, 679 F.3d 109, 114 (3d Cir. 2012). When a defendant “challenges
the validity of a guilty plea for the first time on direct appeal,” we review for plain error.
United States v. Agarwal, 24 F.4th 886, 891 (3d Cir. 2022).
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Counsel satisfied these requirements. He submitted a comprehensive brief outlining
three possible issues Fryer could raise on appeal: 1) venue and jurisdiction, 2) voluntariness
of the guilty plea, and 3) legality of the sentence. Each is either expressly rejected by the
relevant case law or readily controverted by the facts in the record. All leaving no doubt
that he conducted a “conscientious examination” of the record, Anders, 386 U.S. at 744,
“thoroughly scoured the record in search of appealable issues,” and explained “why the
issues are frivolous.” Coleman, 575 F.3d at 319. An independent review of the record,
limited to the issues raised in the Anders brief, confirms counsel’s conclusion so we “will
grant counsel’s Anders motion, and dispose of the appeal without appointing new counsel.”
L.A.R. 109.2(a).
B. Appellate Waiver
An appellate waiver is enforceable if 1) the appellant’s arguments are covered by
the waiver; 2) the waiver was knowing and voluntary; and 3) the waiver’s enforcement
would not lead to a miscarriage of justice. See United States v. Goodson, 544 F.3d 529,
536 (3d Cir. 2008).
The language of Fryer’s waiver covers his arguments; and the District Court’s
thorough plea colloquy ensured that Fryer made the waiver knowingly and voluntarily and
comprehended his possible sentence. Nor is Fryer’s sentence subject to challenge on appeal
since it falls below the guideline range and does not satisfy any of the other conditions
under 18 U.S.C. § 3742. See United States v. Corso, 549 F.3d 921, 927–28 (3d Cir. 2008);
Langley, 52 F.4th at 574. Under these circumstances, enforcing Fryer’s waiver would not
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result in a miscarriage of justice. See United States v. Erwin, 765 F.3d 219, 228 (3d Cir.
2014).
III.
For these reasons, the Court grants counsel’s motion to withdraw and dismisses
Fryer’s appeal.
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