United States v. Bernard Scott, Jr. ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 22-2155 & 22-2156
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UNITED STATES OF AMERICA
v.
BERNARD SCOTT, JR.,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(Nos. 1-98-cr-00170-001 & 3-22-cr-00073-001)
U.S. District Judge: Honorable Malachy E. Mannion
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Submitted Under Third Circuit L.A.R. 34.1(a)
March 7, 2023
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Before: SHWARTZ, BIBAS, and AMBRO, Circuit Judges.
(Filed: March 8, 2023)
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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.
SHWARTZ, Circuit Judge.
Bernard Scott, Jr. appeals the District Court’s judgment for his violation of the
terms of his supervised release. Because we agree with his counsel that Scott’s appeal
does not present any nonfrivolous issues, we will grant counsel’s motion to withdraw
under Anders v. California, 386 U.S. 738 (1967), and affirm.
I
In 1999, Scott pled guilty to bank robbery in the Middle District of Pennsylvania
and was sentenced to 170 months’ imprisonment and three years’ supervised release.
While serving his sentence at a facility in Colorado, Scott was involved in an altercation
in which another inmate was killed. Scott pled guilty to voluntary manslaughter and the
District Court in Colorado sentenced him to 120 months’ imprisonment to be served
consecutive to his bank robbery sentence as well as three years’ supervised release. The
terms of his supervised release in both cases prohibited him from committing “another
federal, state, or local crime.” App. 25, 47.
Scott was released in 2020 and arrested on state drug charges in Pennsylvania
thirteen months later. He pled guilty in Pennsylvania state court to the manufacture,
delivery, or possession with intent to manufacture or deliver controlled substances and
was sentenced to three-and-a-half to seven years’ imprisonment.
Thereafter, the District Court in the Middle District of Pennsylvania held a
supervised release revocation hearing at which Scott admitted that, by committing a state
crime, he violated the terms of his supervised release in both the Pennsylvania and
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Colorado cases. 1 The Court accepted Scott’s plea and explained that Scott committed a
Grade A violation, which, when combined with his criminal history category of VI,
resulted in a Guidelines range of thirty-three to forty-one months in each case. The
statutory maximum in each case, however, was twenty-four months. 18 U.S.C. §
3583(e)(3).
Scott requested that the federal sentence run concurrent with his state sentence
and, if the Court declined to impose a concurrent sentence, that he either be permitted to
serve his federal sentence in a state facility or serve his state sentence first. The District
Court denied Scott’s requests, imposed twelve months’ imprisonment in the Pennsylvania
case and twenty-four months’ imprisonment in the Colorado case to run concurrently,
ordered that both sentences run consecutive to Scott’s state sentence, and declined to
impose any additional term of supervised release. The Court explained that its sentence
was necessary to punish Scott’s violation of “the Court’s trust” and to account for his
“very serious” violations of supervised release and his extensive criminal history. App.
72-73.
Scott appeals and his appointed counsel has moved to withdraw. 2
II 3
1
Pursuant to 18 U.S.C. § 3605, the District of Colorado transferred jurisdiction
over Scott’s supervised release in the voluntary manslaughter case to the Middle District
of Pennsylvania.
2
Scott did not file a brief on his own behalf even though he was given the option
to do so.
3
The District Court had jurisdiction under 18 U.S.C. §§ 3231 and 3605. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
3
A
Our local rules allow defense counsel to file a motion to withdraw and an
accompanying brief under Anders when counsel has reviewed the record and concludes
that “the appeal presents no issue of even arguable merit.” 3d Cir. L.A.R. 109.2(a).
When counsel submits an Anders brief, we must determine: “(1) whether [he] 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) (citation omitted). An issue is frivolous if it “lacks any basis in law or fact.”
McCoy v. Ct. of Appeals of Wis., Dist. 1, 486 U.S. 429, 438 n.10 (1988).
To determine whether counsel fulfilled his obligations, we examine the Anders
brief to see if it: (1) shows that counsel has thoroughly examined the record in search of
appealable issues, identifying those that arguably support the appeal, even if “wholly
frivolous,” Smith v. Robbins, 528 U.S. 259, 285 (2000); and (2) explains why those
issues are frivolous, United States v. Marvin, 211 F.3d 778, 780-81 (3d Cir. 2000). If
counsel satisfies these requirements, “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).
B
Here, Scott’s counsel has satisfied his Anders obligations. Counsel correctly
recognized that, because Scott admitted he violated the terms of his supervised release,
In the Anders context, we exercise plenary review to determine if the record
presents any nonfrivolous issues. Simon v. Gov’t of V.I., 679 F.3d 109, 114 (3d Cir.
2012) (citing Penson v. Ohio, 488 U.S. 75, 80-83 & n.6 (1988)).
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his appellate issues were limited to the District Court’s jurisdiction, the voluntariness of
his admission, and the reasonableness of his sentence. See United States v. Broce, 488
U.S. 563, 569 (1989). The Anders brief explains why any challenge to the Court’s
jurisdiction, the violation finding, and the sentence lacks support. Therefore, counsel’s
brief is sufficient, Youla, 241 F.3d at 300, and we agree that there are no nonfrivolous
issues for appeal.
First, the District Court had jurisdiction to revoke the supervised release imposed
in connection with the bank robbery and manslaughter convictions because both are
federal crimes against the United States. 18 U.S.C. § 3231. In addition, the Middle
District of Pennsylvania had jurisdiction over the supervised release imposed as part of
Scott’s Colorado sentence because the Colorado case was transferred from the District of
Colorado to the Middle District pursuant to 18 U.S.C. § 3605. Thus, any appeal
challenging the District Court’s jurisdiction to revoke Scott’s supervised release would be
frivolous.
Second, Scott’s admission that he violated the terms of his supervised release was
counseled and voluntary. 4 Broce, 488 U.S. at 569. In the context of a revocation
hearing, the voluntariness of a defendant’s waiver of his rights is based on the “totality of
the circumstances” and does not require “rigid or specific colloquies with the district
court.” United States v. Manuel, 732 F.3d 283, 291 (3d Cir. 2013) (quotation omitted).
4
Because Scott did not raise any objections at the revocation hearing, we review
the District Court’s decision for plain error. United States v. Plotts, 359 F.3d 247, 248-49
(3d Cir. 2004).
5
Rather, it requires only a showing that the defendant is aware of “both the rights afforded
him [] and the consequences of relinquishing those rights.” Id. The record so reflects.
Before Scott admitted the violation, the District Court: (1) described the nature of the
charges in both cases; (2) explained why Scott’s violation of supervised release in the
Colorado case was being adjudicated in Pennsylvania; (3) informed him of the
consequences of the violations; (4) told Scott that he was entitled to a hearing; (5)
established that Scott’s counsel had discussed these considerations with Scott; and (6)
confirmed with him that he understood all of this information. After being advised of his
rights and the consequences of his plea, Scott admitted his guilt. As a result, any appeal
contesting the voluntariness of his admission would be frivolous. 5
Third, Scott’s sentence was procedurally and substantively reasonable. 6 As to
procedural reasonableness, the District Court followed United States v. Gunter’s three-
step procedure, which requires a court to calculate the guideline range, decide on
departure motions, and apply the factors in 18 U.S.C. § 3553(a). 462 F.3d 237, 247 (3d
Cir. 2006). The District Court accurately calculated a Guidelines range of thirty-three to
forty-one months because Scott committed a Grade A violation of supervised release,
U.S.S.G. § 7B1.1(a)(1) (defining a Grade A violation as “a . . . state . . . offense
5
There is also a factual basis for the plea. In addition to Scott’s admission, his
state-court conviction proves he committed a state crime while on supervised release.
See United States v. Lloyd, 566 F.3d 341, 344 (3d Cir. 2009).
6
Because Scott did not object, we review the procedural challenge to his sentence
for plain error. See United States v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en
banc). We review the substantive reasonableness of a sentence for abuse of discretion,
Gall v. United States, 552 U.S. 38, 46 (2007); United States v. Azcona-Polanco, 865 F.3d
148, 151 (3d Cir. 2017).
6
punishable by a term of imprisonment exceeding one year that . . . is a controlled
substance offense”), and his criminal history category was VI. See U.S.S.G. § 7B1.4.
The Court also correctly recognized that a statutory maximum of twenty-four months
applied. 18 U.S.C. § 3583(e)(3) (identifying a two-year statutory maximum if the offense
that resulted in the term of supervised release is a class C or D felony). The twelve and
twenty-four month sentences the Court imposed were below the Guideline range and did
not exceed the statutory maximum.
There were no departure motions filed and the District Court considered the
applicable § 3553(a) factors. See 18 U.S.C. § 3583(e). The Court explained that it
denied Scott’s request for a concurrent sentence because Scott had “violated the Court’s
trust,” App. 72, and a consecutive federal sentence was necessary to ensure that he was
punished for that action. It also described the violations as “very serious,” App. 72, and
noted Scott’s criminal history, The Court’s discussion indicates that it meaningfully
considered Scott’s colorable arguments concerning the serving of his sentence, his
background, and the latest violation. United States v. Thornhill, 759 F.3d 299, 311 (3d
Cir. 2014) (noting that, “[i]n some cases a brief statement will suffice,” provided that a
court does not ignore a colorable argument raised by a party regarding the applicability of
one of the § 3553(a) factors). As such, any argument that Scott’s sentence was
procedurally unreasonable would be frivolous.
Any objection to the substantive reasonableness of Scott’s sentence would also
lack sufficient merit. First, because Scott committed a controlled-substance offense, the
District Court was required to revoke his supervised release and impose a prison
7
sentence. 18 U.S.C. § 3583(g). Second, we cannot conclude that “no reasonable
sentencing court” would have imposed a consecutive sentence. United States v. Tomko,
562 F.3d 558, 568 (3d Cir. 2009) (en banc). The District Court’s decisions to run the
federal sentence consecutive to Scott’s state sentence, and to deny Scott’s other requests
related to where he would serve his sentence, were amply supported by: (1) 18 U.S.C. §
3584, which gives district courts authority to impose a consecutive term of imprisonment;
(2) the Guidelines, which recommend that “[a]ny term of imprisonment imposed upon
the revocation of . . . supervised release shall be ordered to be served consecutively to
any sentence of imprisonment that the defendant is serving,” U.S.S.G. § 7B1.3(f); and (3)
our precedent, which indicates that a revocation sentence is meant to “sanction . . . the
defendant’s breach of trust, while taking into account, to a limited degree, the seriousness
of the underlying violation,” United States v. Dees, 467 F.3d 847, 853 (3d Cir. 2006)
(quotations omitted). Indeed, the Court explicitly stated that its sentence was intended to
punish Scott’s “very serious” supervised release violations that evidenced a breach of
“the Court’s trust.” App. 72. Given the statutory discretion and the Guidelines
recommendation, together with the fact that Scott committed his state drug crime only
thirteen months after his release from a very lengthy prison sentence, Scott’s sentence
was substantively reasonable and no nonfrivolous argument to the contrary exists. 7
7
Weekes v. Fleming, 301 F.3d 1175 (10th Cir. 2002), does not support Scott’s
argument. There, the state court explicitly stated that it intended the state sentence to run
concurrent to the federal sentence, id. at 1182 (emphasizing that the opinion “does not
mandate how consecutive sentences are served”), whereas here the state court was silent
as to the issue and the District Court reasonably required the sentences to run
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III
For the foregoing reasons, we will grant counsel’s motion to withdraw and affirm.
consecutively to reflect Scott’s separate violation: the breach of trust the Court placed in
him.
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