United States v. Griggs , 185 F. App'x 213 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
7-14-2006
USA v. Griggs
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3655
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3655
UNITED STATES OF AMERICA
v.
NATHAN CHARLES GRIGGS,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Criminal No. 04-cr-0052
(Honorable William W. Caldwell)
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 27, 2006
Before: SCIRICA, Chief Judge, NYGAARD and ALARCÓN*, Circuit Judges
(Filed: July 14, 2006)
OPINION OF THE COURT
*
The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
SCIRICA, Chief Judge.
Nathan Charles Griggs appeals his criminal sentence and conviction. Griggs’s
attorney filed a motion to withdraw as court-appointed counsel in this case and filed a
brief under Anders v. California, 386 U.S. 738 (1967). Griggs was provided notice of his
attorney’s desire to withdraw and was informed that he could file a pro se brief. Griggs
filed a brief with this Court on September 26, 2005. For the reasons stated, we will deny
defense counsel’s motion to withdraw, affirm the judgment of conviction, vacate the
judgment of sentence, and remand for resentencing.
I.
On February 11, 2004, Griggs was charged with four counts of bank robbery, all in
violation of 18 U.S.C. § 2113(a). The indictment alleged Griggs committed four separate
robberies in a span of just under a month. Griggs pled guilty to all counts. In accordance
with the plea agreement, Griggs reserved the right to contest the type of weapon used
during the course of the fourth robbery. The pre-sentence report placed Griggs in a
sentencing guidelines range of 151–188 months. This included a recommended six-level
upward adjustment under U.S.S.G. § 2B3.1(b)(2)(B) for having “otherwise used” a
firearm during the fourth charged robbery. Griggs objected to the § 2B3.1(b)(2)(B) gun-
use enhancement, claiming he used a crossbow during the fourth robbery, not a firearm.1
1
The sentencing guidelines call for a six-level enhancement if a “firearm” was
“otherwise used” in a robbery, U.S.S.G. § 2B3.1(b)(2)(B), but only a four-level
enhancement if some other “dangerous weapon” was “otherwise used,” U.S.S.G. §
(continued...)
2
On September 8, 2004 — after Blakely v. Washington, 542 U.S. 296 (2004), but
before United States v. Booker, 543 U.S. 220 (2005) — the District Court sentenced
Griggs to 169 months’ imprisonment. The District Court expressly declined to consider
the federal sentencing guidelines in making its sentencing decision, finding the guidelines
unconstitutional in their entirety under Blakely. Nevertheless, the court heard evidence at
the sentencing hearing on the gun-use enhancement recommended in the PSR. The court
found by a preponderance of the evidence that Griggs used a gun during the fourth
robbery. The court noted Griggs’s sentence reflected both the trauma his actions caused
to his victims and his extensive criminal history.
II.
Third Circuit Local Appellate Rule 109.2(a) provides that “[w]here, upon review
of the district court record, trial counsel is persuaded that the appeal presents no issue of
even arguable merit, trial counsel may file a motion to withdraw and supporting brief”
under Anders. In reviewing an Anders brief, we must consider “(1) whether counsel
adequately fulfilled the rule’s requirements; and (2) whether an independent review of the
record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d
Cir. 2001).
In submitting an Anders brief, counsel must “satisfy the court that counsel has
thoroughly examined the record in search of appealable issues,” and “to explain why the
1
(...continued)
2B3.1(b)(2)(D).
3
issues are frivolous.” Id. Counsel need not “raise and reject every possible claim,” but
his or her brief must demonstrate “conscientious examination.” Id. Our review reveals
counsel has thoroughly considered all plausible bases for appeal. Counsel examined at
length the District Court’s finding supporting the gun-use enhancement, as well as the
case law supporting this finding. Counsel also anticipated the Supreme Court’s Booker
opinion (although not its exact holding), suggesting an appealable issue might arise
should the Supreme Court apply Blakely to the federal sentencing guidelines.
Accordingly, we find counsel has submitted an adequate Anders brief.
As noted, Griggs also submitted a brief. He raises several issues, including (1) an
ineffective assistance of counsel claim, (2) challenges to the District Court’s gun-use
finding, (3) a claim that the District Court improperly applied U.S.S.G. § 2B3.1(b)(2)(B)
to enhance his sentence by six levels, and (4) a Booker challenge to his sentence.2 We
have conducted an independent review of the record, see Youla, 241 F.3d at 301, and
conclude Griggs raises a non-frivolous issue through his Booker challenge, but all other
issues raised are without merit.
We do not address Griggs’s assertion of ineffective assistance of counsel on direct
review. United States v. Thornton, 327 F.3d 268, 271–72 (3d Cir. 2003). Such claims are
“best decided in the first instance in a collateral action.” Id.
2
Griggs offers several other challenges to his conviction and sentence, but none are of
arguable merit.
4
With regard to the gun-use finding, the court correctly applied a preponderance of
the evidence standard to determine whether Griggs used a gun, rather than a crossbow,
during the fourth robbery. See United States v. Grier, 449 F.3d 558, 570 (3d Cir. 2006).
The court’s gun-use finding was not clear error. The bank teller involved in the fourth
robbery testified unequivocally that Griggs pointed a gun at her during the robbery. The
court was entitled to credit this testimony over Griggs’s.
Griggs also contends that, even if he used a gun, his sentence should only have
been enhanced five levels for having “brandished” the gun under U.S.S.G. §
2B3.1(b)(2)(C), not six levels for having “otherwise used” the gun under U.S.S.G. §
2B3.1(b)(2)(B). There was no error here, much less plain error. The bank teller testified
Griggs took out a gun, pointed it at her, told her to fill a bag with money, and warned her
not to “push his buttons.” (App. 26a–27a.) We have held that “specifically leveling a
cocked firearm at the head or body of a bank teller or customer, ordering them to move or
be quiet according to one’s direction, is a cessation of ‘brandishing’ and the
commencement of ‘otherwise used.’” United States v. Orr, 312 F.3d 141, 145 (3d Cir.
2002). Griggs’s conduct during the fourth robbery falls squarely within this definition of
“otherwise used.”
After counsel filed his Anders brief, the Supreme Court decided United States v.
Booker, holding judicial fact-finding under the mandatory federal sentencing guidelines
was unconstitutional and making those guidelines advisory. 543 U.S. at 245–46. The
Court directed district courts to consider the 18 U.S.C. § 3553(a) factors in imposing
5
sentence, including the properly calculated guidelines range itself, 18 U.S.C. §
3553(a)(4). Booker, 543 U.S. at 259; see United States v. Cooper, 437 F.3d 234, 327, 330
(3d Cir. 2006) (explaining sentencing procedures after Booker). As noted, the District
Court here expressly declined to consider the guidelines. Nor does the record reveal that
the court considered the remaining § 3553(a) factors. This was error under Booker. See
Booker, 543 U.S. at 261–64.
On May 8, 2006, we directed defense counsel to inform this Court if Griggs
requests resentencing in light of Booker and Cooper.3 Counsel responded on June 21,
2006, advising us of Griggs’s wish to be resentenced. Accordingly, we will vacate his
sentence and remand for resentencing. See United States v. Davis, 407 F.3d 162, 166 (3d
Cir. 2005) (vacating and remanding a sentence under Booker “for consideration of the
appropriate sentence by the District Court in the first instance”).
This result is not foreclosed by our opinion in United States v. Hill, 411 F.3d 425,
426 (3d Cir. 2005). In Hill, we held a district court’s error in sentencing a defendant
under the mandatory guidelines was harmless when the court determined an alternative
sentence under an indeterminate sentencing scheme would be identical to the sentence
imposed under the mandatory guidelines. Id. Because the district court gave the
defendant the same sentence under both schemes, we could infer the court would have
3
In his September 26, 2005 pro se brief, Griggs contended that, under Booker, he is
entitled to have a jury determine whether he “otherwise used” a firearm. But Booker calls
for sentencing under the advisory guidelines, not for a jury determination of sentencing
facts.
6
done the same under the post-Booker sentencing scheme. We don’t believe a similar
inference can be made here. Unlike in Hill, where the district court not only considered
the guidelines, but imposed an alternative sentence under them, the District Court in this
case expressly declined to take the guidelines into account. The court neither calculated
Griggs’s guidelines range nor considered the range recommended by the PSR.
Accordingly, any determination of the District Court’s intent under a post-Booker
sentencing scheme would be in part speculative. Remand is, therefore, appropriate.
Because this case is being remanded for resentencing, we will deny counsel’s
motion to withdraw.
III.
We will affirm the judgment of conviction, vacate the judgment of sentence, and
remand this case for resentencing under Booker. Defense counsel’s motion to withdraw
is denied.
7