United States v. Torey White ( 2018 )


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  •                                                                    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ________________
    No. 18-1314
    ________________
    UNITED STATES OF AMERICA
    v.
    TOREY D. WHITE,
    Appellant
    ________________
    Appeal from the United States District Court
    for the Middle District of Pennsylvania
    (D.C. Criminal Action No. 1-16-cr-00294-001)
    District Judge: Honorable Christopher C. Conner
    ________________
    Submitted Under Third Circuit L.A.R. 34.1(a)
    November 5, 2018
    Before: AMBRO, SCIRICA, and RENDELL, Circuit Judges
    (Opinion filed: November 19, 2018)
    ________________
    OPINION *
    ________________
    AMBRO, Circuit Judge
    The United States Government filed a three-count indictment against Torey White,
    which included a charge for possession with intent to distribute at least 28 grams of
    *
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
    constitute binding precedent.
    cocaine, in violation of 21 U.S.C. § 841(a)(1) (“Count One”). The next day, agents
    searched White’s residence and found drugs, firearms, and ammunition. The
    Government filed a superseding indictment adding three more charges, including
    possession of a firearm and ammunition in the furtherance of drug trafficking, in
    violation of 18 U.S.C. § 924(c) (“Count Five”). White pled guilty to Counts One and
    Five. He was sentenced to a term of 70 months’ imprisonment on Count One, and a
    consecutive 60 months on Count Five.
    White appealed his sentence, arguing 18 U.S.C. § 924(c) was rendered
    unconstitutional by Sessions v. Dimaya, 
    138 S. Ct. 1204
    (2018). His court-appointed
    counsel filed a motion to withdraw pursuant to Local Appellate Rule (“L.A.R.”) 109.2(a)
    and a supporting Anders brief arguing that any appeal was frivolous. See United States v.
    Diallo, 732 F. App’x 94, 97 (3d Cir. 2018); see also Anders v. California, 
    386 U.S. 738
    (1967). Pursuant to Rule 109.2(a), the Government must respond to an Anders brief.
    Here the Government agrees that all claims are frivolous. White did not file a pro se
    brief in response. The District Court had jurisdiction under 18 U.S.C. § 3231, and we
    have jurisdiction under 28 U.S.C. § 1291.
    Rule 109.2(a) provides an opportunity for defense counsel, a pro se defendant, and
    the Government to weigh in on whether all of a defendant’s claims are frivolous, and, if
    so, whether counsel may withdraw from the case. L.A.R. 109.2(a). “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.” 
    Id. When reviewing
    an appeal that includes an
    Anders brief, we apply plenary review, Simon v. Government of the Virgin Islands, 679
    
    2 F.3d 109
    , 114 (3d Cir. 2012), and consider “(1) whether counsel adequately fulfilled
    [Rule 109.2(a)]; 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).
    The first prong of the Anders analysis is fulfilled if the defense counsel has
    “satisfactorily established that he or she ‘has thoroughly examined the record in search of
    appealable issues’ and ‘explain[ed] why [those] issues are frivolous.’” Diallo, 732 F.
    App’x at 97 (quoting 
    Youla, 241 F.3d at 300
    ). Counsel’s failure to address fully the
    issues, however, is not the “conscientious examination” of the record required for an
    Anders brief. United States v. Coleman, 
    575 F.3d 316
    , 319 (3d Cir. 2009) (citing 
    Anders, 386 U.S. at 744
    ). Because we are convinced that counsel’s Anders brief “satisfie[d] the
    requirements of Rule 109.2(a), identified all appealable issues, and explained why those
    issues are frivolous,” United States v. Barnes, 677 F. App’x 786, 787 (3d Cir. 2017), we
    turn to the second prong of the Anders analysis: independent review of the record. See
    
    Anders, 386 U.S. at 744
    .
    Like his counsel, we see none of the claims White brings on appeal as meritorious.
    First, he argues that the statute under which he pled guilty to the firearm offense, 18
    U.S.C. § 924(c), was rendered unconstitutional by Dimaya. But that case held only that
    the residual clause of a different subsection of the statute—§ 924(e)(2)(B)—was void for
    vagueness. 
    See 138 S. Ct. at 1211
    –12. This holding does not bear on § 924(c).
    Second, White contends that his 70-month sentence for the drug offense and his
    mandatory 60-month sentence for the gun offense should have run concurrently, not
    consecutively. But 18 U.S.C. § 924(c)(1)(D)(ii) requires that a mandatory 60-month
    3
    sentence for a firearm offense run consecutively. See also United States v. Walker, 
    473 F.3d 71
    , 85 (3d Cir. 2007) (rejecting a similar challenge to a consecutive sentence under
    section 924(c)).
    Third, he asserts that the sentence for his drug offense should be vacated because
    the Government did not present evidence of the quantity of cocaine. But White himself
    pled guilty to possessing over 28 grams of cocaine and did not object to the presentence
    report that stated he had 29 grams of cocaine.
    Finally, White argues that the District Court should have departed downward from
    the Guideline range for the drug offense. But, in the absence of strong mitigating factors,
    it would make little to no sense to hold that the Court abused its discretion by adopting a
    sentence at the bottom of that range. See United States v. Woronowicz, 
    744 F.3d 848
    ,
    852 (3d Cir. 2014); see also United States v. Serino, 309 F. App’x 637, 640 (3d Cir.
    2009) (citing Rita v. United States, 
    551 U.S. 338
    , 350–51 (2007)).
    Thus we affirm.
    4