United States v. William Upson ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-1078
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UNITED STATES OF AMERICA
v.
WILLIAM UPSON, a/k/a Jamal
William Upson,
Appellant
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On Appeal from the United States District Court for the
Eastern District of Pennsylvania
(D. C. Criminal No. 2-16-cr-00105-01)
District Judge: Honorable Gerald A. McHugh
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Submitted Under Third Circuit L.A.R. 34.1(a)
October 29, 2018
Before: CHAGARES, JORDAN, and VANASKIE, Circuit Judges.
(Filed: December 12, 2018)
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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.
CHAGARES, Circuit Judge.
William Upson appeals his sentence of 38 months of imprisonment for
possession with intent to distribute a controlled substance, and his attorney moves
to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967). For
the following reasons, we will grant the motion to withdraw and affirm the District
Court’s amended judgment.
I.
We write solely for the parties and therefore recite only the facts necessary
to our disposition. Police arrested Upson in the parking lot of a Pantry Mart in
Philadelphia and found crack cocaine and fentanyl in his socks. During a
subsequent search of Upson’s shared apartment, more crack cocaine and fentanyl
were found, along with a loaded, semi-automatic gun. Upson was charged with
four counts: possession with intent to distribute a controlled substance in violation
of 21 U.S.C. § 841(a)(1) (Count One); possession with intent to distribute a
controlled substance within 1,000 feet of a school in violation of 21 U.S.C. § 860(Count Two); possession of a firearm in furtherance of a drug trafficking crime in
violation of 18 U.S.C. § 924(c) (Count Three); and possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g) (Count Four).
Upson elected to go to trial. During its deliberations, the jury asked
whether Pantry Mart, the location of his arrest, was within 1,000 feet of a school.
The District Court took judicial notice of the distance between Pantry Mart and the
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school, and responded to the jury that the distance was under 1,000 feet. The jury
convicted Upson on Counts One and Two and acquitted him of Count Three. The
District Court dismissed Count Four. Upson’s convictions exposed him to a
guidelines sentencing range of 46 to 57 months, and he was sentenced to 46
months.
Upson appealed his convictions to this Court, challenging the District
Court’s decision to take judicial notice of the distance between Pantry Mart and
the school. In response, the Government agreed that the District Court erred, and
this Court vacated Upson’s conviction on Count Two. On remand, the
Government did not re-try Count Two, and the District Court held a resentencing
hearing on Count One alone. An amended pre-sentence report (“PSR”) was
completed, and neither party submitted objections. Based on the weight of the
drugs found, pursuant to U.S.S.G. § 2D1.1(c)(12), Upson’s base offense level was
calculated as 16. Two points were subtracted for accepting responsibility, making
his total offense level 14. His criminal history category was VI, exposing him to a
guidelines sentencing range of 37 to 46 months.
The Government asked the District Court to re-impose 46 months of
imprisonment based on the severity of Upson’s crimes, his extensive criminal
record, and the devastating impact of crack cocaine and fentanyl in Philadelphia.
Upson requested a sentence of 37 months because he had accepted responsibility,
maintained a steady job, and supported his son. He also argued that the amended
sentence should reflect the dismissal of Count Two. The District Court adopted
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the findings of the PSR and sentenced him to 38 months of imprisonment, three
years of supervised release, and a $100 special assessment. Upson timely
appealed the sentence. His attorney filed a motion to be relieved and a supporting
brief pursuant to Anders, stating that there are only frivolous issues for appeal.
Upson did not file his own brief, as he was permitted to do.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This
Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Our
review of a motion to withdraw under Anders is two-fold: (1) whether counsel
adequately fulfilled this Court’s Local Appellate Rule 109.2(a), which requires a
brief identifying anything in the record that might support an appeal; and (2)
whether the Court’s own “independent review of the record presents any
nonfrivolous issues,” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).
The Court exercises plenary review to determine if there are any nonfrivolous
issues. Simon v. Gov’t of the V.I., 679 F.3d 109, 114 (3d Cir. 2012).
III.
Defense counsel and the Government agree that the potential nonfrivolous
issues are limited by the current procedural posture. Because the Government
elected not to re-try Upson on Count Two, the remand was limited to resentencing
on Count One. Therefore, he is limited to raising issues regarding only the
resentencing. See Skretvedt v. E.I. DuPont de Nemours, 372 F.3d 193, 203 (3d
Cir. 2004) (“We have consistently rejected such attempts to litigate on remand
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issues that were not raised in a party’s prior appeal and that were not explicitly or
implicitly remanded for further proceedings.”).
A district court must follow three procedural steps in sentencing: (1)
calculate the correct guidelines range, (2) rule on any departure motions, and (3)
exercise its discretion by considering the relevant 18 U.S.C. § 3553(a) factors.
United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). A sentence that
satisfies these procedural requirements will also be substantively sound — and
therefore affirmed — “unless no reasonable sentencing court would have imposed
the same sentence on that particular defendant for the reasons the district court
provided.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).
The District Court properly calculated the guidelines range as 37 to 46
months based on Upson’s total offense level of 14. Neither party objected to this
finding or submitted departure motions. As to the § 3553(a) factors, the District
Court acknowledged the persuasiveness of the Government’s arguments,
especially the “repetitive nature” of Upson’s criminal conduct and its contribution
to the “plague” of drug abuse. Appendix (“App.”) 70. Ultimately, however, the
District Court found the new sentence should be on the lower end of the guidelines
range to reflect the dismissal of Count Two. The District Court sentenced Upson
to 38 months — one month above the low end of the range — urging him to use
the extra month to reflect on his past and prepare himself for a crime-free life with
his son upon release. The court reminded Upson that he has an opportunity to
change his life thanks to the “extraordinary representation by a fine lawyer.” App.
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70. We conclude that Upson’s sentence was both procedurally and substantively
reasonable.
IV.
For the foregoing reasons, we will grant the motion to withdraw and affirm
the District Court’s judgment.
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