United States v. Robert Lee ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-14-2009
USA v. Robert Lee
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1843
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-1843
_____________
UNITED STATES OF AMERICA,
v.
ROBERT SIDNEY LEE,
Appellant
_____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 06-cr-00267)
District Judge: Honorable Yvette J. Kane
_____________
Submitted Under Third Circuit L.A.R. 34.1(a)
on January 9, 2009
Before: FUENTES, FISHER and ALDISERT, Circuit Judges.
(Opinion Filed: January 14, 2009)
_____________
OPINION OF THE COURT
_____________
ALDISERT, Circuit Judge.
Appellant Robert Sidney Lee’s attorney has filed a motion to withdraw as appellate
counsel in this case, and has filed a brief in support thereof under Anders v. California,
386 U.S. 738 (1967). Counsel contends that there are no nonfrivolous issues that can be
raised on appeal by Lee. We agree. Accordingly, we will affirm the decision of the
District Court of the Middle District of Pennsylvania and we will grant counsel’s Anders
motion.
Anders provides that “if counsel finds his case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request permission to
withdraw.” Id. at 744. “That request must, however, be accompanied by a brief referring
to anything in the record that might arguably support the appeal.” Id. This Court
implements Anders via our Local Appellate Rule 109.2(a), which sets forth the following
procedure:
Where, upon review of the district court record, counsel is persuaded that
the appeal presents no issue of even arguable merit, counsel may file a
motion to withdraw and supporting brief pursuant to Anders v. California,
386 U.S. 738 (1967), which must be served upon the appellant and the
United States. The United States must file a brief in response. Appellant
may also file a brief in response pro se. . . . If the panel agrees that the
appeal is without merit, it will grant counsel’s Anders motion, and dispose
of the appeal without appointing new counsel.
3d Cir. L.A.R. 109.2(a).
This Court’s inquiry is twofold when an Anders motion is brought. First, we must
determine whether counsel has adequately fulfilled the obligations imposed by L.A.R.
109.2(a). United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Counsel’s Anders
brief must (1) satisfy the Court that counsel has thoroughly examined the record in search
of appealable issues, Id. at 300; (2) identify any “issues arguably supporting the appeal
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even though the appeal was wholly frivolous,” Smith v. Robbins, 528 U.S. 259, 285
(2000); and (3) “explain . . . why the issues are frivolous,” United States v. Marvin, 211
F.3d 778, 780-781 (3d Cir. 2000). Second, we must independently review the record to
confirm that the appeal does not present any nonfrivolous issues. Youla, 241 F.3d at 300.
In so doing, we “confine our scrutiny to those portions of the record identified by an
adequate Anders brief . . . [and] those issues raised in Appellant’s pro se brief.” Id. at
301.
Pursuant to Anders and our local rule, counsel submitted a brief arguing that there
are no nonfrivolous arguments on appeal and filed a motion seeking to withdraw as
counsel; the government responded; and Lee filed a pro se brief. We have examined the
briefs of counsel and Lee pro se and conclude that none of the issues are nonfrivolous,
and our own review of the record reveals no other nonfrivolous issues.
I.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
We exercise plenary review to determine whether there are any nonfrivolous issues
on appeal. Penson v. Ohio, 488 U.S. 75, 80 (1988). The determination of frivolousness is
informed by the standard of review for each potential claim raised. See, e.g., United
States v. Schuh, 289 F.3d 968, 974-976 (7th Cir. 2002).
Because we write only for the parties, who are familiar with the facts, procedural
history and contentions presented, we will not recite them except as necessary to the
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discussion.
II.
Counsel identified only two issues for our consideration. First, we are to inquire
whether the record in this case supports the determination of the District Court that Lee
made a knowing, intelligent and voluntary guilty plea supported by a factual basis, as
required by Rule 11 of the Federal Rules of Civil Procedure and the constitutional
requirements of Boykin v. Alabama, 395 U.S. 238 (1969). Second, we must examine
whether the District Court abused its discretion in imposing a sentence of 96 months
where the sentencing Guidelines range was 92-115 months and the District Court
considered the 18 U.S.C. § 3553(a) factors before imposing a sentence.
On the question of whether there was a knowing plea of guilty and adequate
factual basis therefore, the District Court explained Lee’s right to a jury trial and Lee
responded that he understood his rights. The District Court then reviewed the plea
agreement and Lee indicated that he understood the agreement and signed it willingly. At
the hearing the government said it would produce evidence at trial that Lee sold heroin on
specific dates to named individuals and that 20 bundles of heroin had been recovered in
this case. Lee agreed that these facts were true. On this record there would be no arguable
merit to a claim that the District Court violated its obligations under Rule 11 and Boykin.
As to whether the District Court exceeded its discretion by imposing a 96 month
sentence, we find that it did not. In Gall v. United States, 128 S. Ct. 586, 596 (2007), the
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Court said: “A District Court should begin all sentencing proceedings by correctly
calculating the applicable Guidelines range. It should be the starting point and the initial
benchmark.” See United States v. Langford, 516 F.3d 205, 212 (3d Cir. 2008) (same).
There is no dispute that the range of 92-115 months was properly calculated for Lee’s
offense.
Once the proper Guidelines range has been calculated, the sentencing judge should
make an individualized assessment and consider all of the 18 U.S.C. § 3553(a) factors in
determining the final sentence. Gall, 128 S. Ct. at 596. To determine on appeal that a
sentence is reasonable, the record must disclose that the District Court “gave meaningful
consideration to the § 3553(a) factors,” and “reasonably applied [those factors] to the
circumstances of the case.” United States v. Cooper, 437 F.3d 324, 329-330 (3d Cir.
2006). Although a district court may not presume that the Guidelines range is per se
reasonable, an appellate court may, but is not required to, presume that a sentence within
the Guidelines range is reasonable. Gall, 128 S. Ct. at 597. The appellant bears the burden
of showing that his sentence was unreasonable. Cooper, 437 F.3d 324.
Here, the District Court explained the reasons for Lee’s sentence with specific
reference to the § 3553(a) factors, and chose to impose a sentence at the lower end of the
applicable Guidelines range. Lee’s counsel asserts, and our independent review of the
record confirms, that the District Court meaningfully considered and reasonably applied
the § 3553(a) factors. Therefore, we find any contention to the contrary to be meritless.
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We agree that any challenge to these issues would not be considered nonfrivolous
and conclude that counsel adequately fulfilled the requirements of Anders.
III.
We have examined the pro se brief filled by Lee which is an argument that his
counsel was ineffective. We do not notice an ineffective assistance claim on direct appeal
unless ineffectiveness is apparent on the record. United States v. Olfano, 503 F.3d 240,
246-247 (3d Cir. 2007). None of the ineffectiveness claims Lee asserts may be
determined on the record. We therefore will not hear them on direct appeal. Although this
is a matter we do not address in a direct appeal, it may possibly be considered in a
proceeding bought under 28 U.S.C. § 2255.
*****
We have considered all of the arguments advanced by the parties and conclude that
no further discussion is necessary. We are satisfied that counsel has comprehensively
examined the record and fulfilled the requirements of Anders and L.A.R. 109.2(a). Our
independent review of the record likewise does not reveal any nonfrivolous issues to be
asserted on appeal. The judgment of the District Court will be affirmed and we will grant
counsel’s motion to withdraw.
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