United States v. Bailey ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-12-2009
USA v. Bailey
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2480
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"USA v. Bailey" (2009). 2009 Decisions. Paper 1874.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2480
_____________
UNITED STATES OF AMERICA
v.
ELLERI BAILEY,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 05-cr-00619-3)
District Judge: Honorable Cynthia M. Rufe
Submitted Under Third Circuit LAR 34.1(a)
February 6, 2009
Before: RENDELL and ROTH, Circuit Judges and
HAYDEN, District Judge*
(Filed: February 12, 2009)
OPINION OF THE COURT
*Honorable Katharine S. Hayden, District Judge for the District of New Jersey
(Newark), sitting by designation.
RENDELL, Circuit Judge.
Elleri Bailey pled guilty to one count of distributing a substance containing
cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2. The District
Court found that Bailey had two prior convictions for controlled substances offenses,
thereby qualifying him as a career offender pursuant to U.S.S.G. § 4B1.2(b). The
guideline range was 188 to 235 months. The District Court sentenced Bailey to 188
months in prison followed by a six year term of supervised release, a fine of $2,000.00,
and several other conditions. He filed a timely appeal. Bailey’s counsel has filed a brief
requesting permission to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967),
because after a conscientious review of the record, he is unable to discern any non-
frivolous issues for appeal. We have jurisdiction under 18 U.S.C. § 3742(a) and 28
U.S.C. § 1291.
In assessing an Anders brief, we must determine: 1) whether counsel has
thoroughly examined the record for appealable issues and has explained why any such
issues are frivolous; and 2) whether an independent review of the record presents any
non-frivolous issues. United States v. Thomas, 389 F.3d 424, 425 (3d Cir. 2004) (citing
United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001)). If the Anders brief appears
adequate on its face, we review only the portions of the record identified in the brief and
any issues raised by an appellant in a pro se brief. See Youla, 241 F.3d at 300. We find
that counsel’s Anders brief is adequate and, as Bailey has not filed a pro se brief, it will
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guide our independent review of the record.
Pursuant to his obligation, counsel has identified a single potential issue to support
an appeal: whether the District Court erred by not granting a variance below the
guideline range based on the length of time that has elapsed from Bailey’s commission of
the crimes that led to his career offender status and his positive works in the community
since then. We review the District Court’s sentence for reasonableness under an abuse of
discretion standard. See Gall v. United States, 128 S. Ct. 586 (2007). During the
sentencing proceeding, Bailey’s counsel argued that the District Court should impose a
sentence below the guideline range because the career offender enhancement was
supported by convictions which occurred fifteen years before the defendant committed
the instant offense and did not adequately reflect Bailey’s history and character. Counsel
presented substantial evidence of Bailey’s volunteer activities, particularly coaching
football and basketball in an at-risk youth athletics program, arguing to the District Court
that it supported a sentence lower than the guideline range.
Counsel has submitted that this argument must fail because the District Court
imposed a sentence within the guideline range, taking into account Bailey’s past criminal
history and other factors required by 18 U.S.C. § 3553(a). We agree. The District Court
addressed both aspects of this argument in its comments at the time of sentencing,
concluding that:
[One hundred and eighty-eight months’ imprisonment] happens to be
the guideline range, but the low end of it, and what I have done to choose that
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is to determine past criminal conduct, as well as trying to predict ongoing and
future criminal conduct, and the best predictors are the past.
I also have used all of the information presented as to Mr. Bailey’s
ability to touch others and inform them of hope in their lives, to put you at the
lowest end that I could of the guidelines, not that I am bound by the guidelines,
but I think the term is the right one for your history and for your conduct, Mr.
Bailey.
(App. R-134-35). The District Court’s refusal to impose a sentence lower than the
guideline range was reasonable, and would not support an appeal.
Our independent review of the record yields no other non-frivolous arguments that
could support an appeal and we are satisfied that the requirements of Anders have been
met. Accordingly, we will affirm the judgment of the District Court and, in a separate
order, grant counsel’s motion to withdraw.
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