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United States v. Ronald Boatwright , 548 F. App'x 829 ( 2013 )


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  •                                                                NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ______
    No. 13-1244
    ____________
    UNITED STATES OF AMERICA
    v.
    RONALD IAN BOATWRIGHT,
    Appellant
    ____________
    On Appeal from the United States District Court
    for the Middle District of Pennsylvania
    (No. 1:03-CR-0361)
    District Judge: Hon. William W. Caldwell
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    December 10, 2013
    Before: MCKEE, Chief Judge, FUENTES, and CHAGARES, Circuit Judges.
    (Filed: December 16, 2013)
    ____________
    OPINION
    ____________
    CHAGARES, Circuit Judge.
    Ronald Boatwright appeals his sentence of 18 months of imprisonment, imposed
    upon a revocation of supervised release. The sentence was to be served consecutively to
    a sentence of 110 months of imprisonment, imposed for a substantive drug violation. His
    attorney has filed a motion to withdraw under Anders v. California, 
    386 U.S. 738
    (1967).
    For the reasons that follow, we will grant the motion and affirm the judgment of
    sentence.
    I.
    We write solely for the parties and therefore recite only the facts that are necessary
    to our disposition. On July 28, 2004, Boatwright pleaded guilty to firearms and drug
    charges and was sentenced to 84 months of imprisonment and three years of supervised
    release. On August 10, 2011, an arrest warrant was issued for Boatwright, alleging that
    he violated the conditions of his supervised release. Pursuant to the warrant, he appeared
    with counsel before Magistrate Judge Martin C. Carlson on August 17 and 19, 2011. The
    conditions allegedly violated involved use of controlled substances, violations of state
    and local laws, and failure to report arrest on those charges in a timely manner to
    Boatwright’s probation officer.
    At the August 19, 2011 hearing, the Government moved to dismiss its petition for
    warrant without prejudice because Boatwright had been arrested and held without bail on
    state drug charges, and because the Government intended to indict Boatwright shortly on
    federal drug charges. The court dismissed the petition without prejudice. The
    Government filed a two-count indictment on August 24, 2011 in the Middle District of
    Pennsylvania, charging Boatwright with conspiracy to distribute and distribution of crack
    cocaine. On July 16, 2012, pursuant to a plea agreement stipulating a sentencing range of
    100 to 120 months, Boatwright pleaded guilty to the conspiracy count, and the
    Government dropped the distribution count.
    2
    On January 3, 2013, the District Court accepted the plea agreement and sentenced
    Boatwright to 110 months of imprisonment. The parties agreed that Boatwright did not
    contest the supervised release violations, and that the properly calculated advisory
    Guidelines range for his violations was 37 to 46 months of imprisonment. Boatwright
    requested that the District Court impose his sentence concurrent with the 110-month
    sentence. The District Court declined to do so, imposing a sentence of 18 months of
    imprisonment to run consecutive to the 110-month sentence.1 Boatwright filed a timely
    pro se notice of appeal, which was docketed on January 23, 2013.
    II.2
    Boatwright’s counsel moves to withdraw as attorney of record, arguing that there
    are no non-frivolous issues that can be advanced on appeal. A copy of defense counsel’s
    brief was furnished to Boatwright, and he was given thirty days to file a brief on his own
    behalf. Boatwright declined to do so. The Government has submitted a brief that
    responds to defense counsel’s Anders brief, and supports counsel’s petition.
    Counsel may move to withdraw from representation if, “upon review of the
    district court record,” he or she “is persuaded that the appeal presents no issue of even
    arguable merit.” 3d Cir. L.A.R. 109.2(a); see also 
    Anders, 386 U.S. at 744
    (“[I]f 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.”). Our “inquiry when counsel
    1
    The 18-month consecutive sentence consisted of two 18-month concurrent sentences for
    violation of supervised release on the two counts of Boatwright’s original conviction.
    2
    The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
    jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
    3
    submits an Anders brief is twofold: (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). If “the
    Anders brief initially appears adequate on its face,” the second step of our inquiry is
    “guided . . . by the Anders brief itself.” 
    Id. at 301
    (quotation marks omitted).
    Boatwright’s counsel submits that he has thoroughly reviewed the record and has
    found no meritorious issues to raise on appeal. He has identified three possible areas of
    review: (1) whether the District Court had jurisdiction or violated Boatwright’s due
    process rights; (2) whether Boatwright entered a valid guilty plea; and (3) whether the
    sentence was procedurally and substantively reasonable.3
    After reviewing the record, counsel concludes that the District Court properly
    exercised subject matter jurisdiction under 18 U.S.C. § 3231, and was authorized to
    revoke a sentence of supervised release under 18 U.S.C. § 3583(e). Furthermore,
    Boatwright did not raise any objection to the District Court’s jurisdiction or authority to
    revoke his supervised release. With regard to due process, counsel concluded that the
    District Court complied with the requirements for revocation of supervised release
    pursuant to Gagnon v. Scarpelli, 
    411 U.S. 778
    , 782-91 (1973), Black v. Romano, 
    471 U.S. 606
    , 610–14 (1985), and Federal Rule of Criminal Procedure 32.1. Specifically,
    Boatwright had notice of the alleged violations, his revocation hearing was held within a
    3
    We review sentences imposed for violations of supervised release for reasonableness.
    United States v. Bungar, 
    478 F.3d 540
    , 542 (3d Cir. 2007). We review the
    reasonableness of a sentence under an abuse-of-discretion standard, and will not reverse
    unless no reasonable court could have imposed such a sentence. United States v. Tomko,
    
    562 F.3d 558
    , 567–68 (3d Cir. 2009) (en banc).
    4
    reasonable time of the filing of the petition for warrant under the circumstances of his
    case, he was represented by counsel at the hearing, and the District Court provided him
    with an opportunity to speak on his own behalf. See 
    Black, 471 U.S. at 612
    ; Fed. R.
    Crim. P. 32.1.
    Counsel also determined that there was no non-frivolous basis to challenge
    Boatwright’s admission of guilt. At the sentencing hearing on January 3, 2013, the
    Government’s counsel informed the District Court that Boatwright would not contest the
    Government’s allegations and would concede that he violated his conditions of
    supervised release, and neither Boatwright’s counsel nor Boatwright raised any objection
    to that admission. See Appendix (“App.”) 53.
    Finally, counsel determined that there was no non-frivolous appealable issue as to
    the reasonableness or legality of the sentence imposed by the District Court. After
    hearing from defense counsel and Boatwright himself, the District Court imposed a
    sentence well below the bottom of the applicable advisory Guidelines range of 37 to 46
    months of imprisonment. Counsel concluded that this sentence was reasonable because
    (1) the advisory Guidelines instruct that any term of imprisonment imposed upon the
    revocation of supervised release be imposed consecutively to any sentence being served
    by the defendant, see U.S.S.G. § 7B1.3(f); (2) the District Court had discretion to impose
    a consecutive sentence, see 18 U.S.C. § 3584(a); and (3) the District Court explained why
    it was imposing the sentence consecutively.
    Counsel’s Anders brief is adequate and will guide our review of the record. We
    agree with counsel that jurisdiction was proper, Boatwright’s due process rights were not
    5
    violated, and his plea was valid. We also agree that the District Court’s imposition of an
    18-month sentence consecutive to the 110-month sentence was not procedurally or
    substantively unreasonable. The 18-month sentence imposed by the District Court is
    significantly below the advisory Guidelines range for Boatwright’s supervised release
    violation. The record reflects that the District Court understood that it was not required
    to impose the sentences consecutively, but rather could exercise discretion in deciding
    whether or not to do so. See App. 54. The court heard arguments from Boatwright’s
    counsel and statements from Boatwright and several of his relatives, considered whether
    to impose the sentences concurrently or consecutively, and provided an explanation for
    the imposition of the consecutive sentence. See, e.g., App. 57-58 (“I think that some
    significant punishment has to be imposed in addition to the sentence that was imposed on
    the criminal case that we’ve just concluded because . . . this is a separate offense, separate
    violation, and it does directly violate the terms of his supervised release.”). Accordingly,
    we conclude that there are no non-frivolous issues for Boatwright to raise on appeal.
    III.
    For the foregoing reasons, we will grant counsel’s motion to withdraw and will
    affirm the District Court’s judgment of sentence. In addition, we certify that the issues
    presented lack legal merit and that counsel is not required to file a petition for writ of
    certiorari with the Supreme Court. 3d Cir. L.A.R. 109.2(b).
    6
    

Document Info

Docket Number: 18-2810

Citation Numbers: 548 F. App'x 829

Judges: Chagares, Fuentes, McKEE

Filed Date: 12/16/2013

Precedential Status: Non-Precedential

Modified Date: 11/6/2024