United States v. Dwayne Tucker , 546 F. App'x 88 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-1180
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UNITED STATES OF AMERICA
v.
DWAYNE TUCKER,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(Crim. No. 12-103)
District Judge: Honorable Joel A. Pisano
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Submitted Under Third Circuit L.A.R. 34.1(a)
October 7, 2013
Before: FUENTES, GREENBERG, and BARRY, Circuit Judges
(Opinion Filed: November 7, 2013)
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OPINION OF THE COURT
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FUENTES, Circuit Judge:
Appellant Dwayne Tucker pleaded guilty to two offenses based upon his
production and possession of child pornography. Tucker now appeals the district court’s
sentencing. Tucker’s counsel also moves to withdraw pursuant to Anders v. California,
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386 U.S. 738 (1967). For the reasons stated below, we affirm Tucker’s sentence, and
grant counsel’s motion to withdraw.
I.
We set forth only the factual background and procedural history necessary to our
analysis.1 On July 27, 2012, pursuant to a written Plea Agreement, Tucker pleaded guilty
to one count of producing child pornography, in violation of 18 U.S.C. § 2251(a) (“Count
One”), and one count of possessing child pornography, in violation of 18 U.S.C. §
2252A(a)(5)(B) (“Count Two”). Tucker accepted the representations of the Government
that the exploitation detailed in Count One was produced or transmitted in interstate
commerce and that the pornography he possessed depicted actual children.
The District Court held a sentencing hearing on January 4, 2013. Consistent with
the Plea Agreement, the court calculated Tucker’s offense level as 42, his criminal
history Category as IV, and the advisory Guidelines range as 360 months to life. Tucker
argued at sentencing that the court should vary from the Guidelines range because of the
circumstances of his upbringing. The district court denied this request. However, the
district court did grant the Government’s downward departure motion pursuant to
U.S.S.G. § 5K1.1, based upon Tucker’s cooperation and substantial assistance. The
Court imposed a sentence of 264 months imprisonment on Count One and 120 months if
imprisonment on Count Two, to run concurrently. The district court entered judgment on
January 8, 2013. Tucker filed a letter with this Court on January 16, 2013, which we
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The district court had jurisdiction over this case under 18 U.S.C. § 3231. We have jurisdiction
over this appeal under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
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treat as a timely pro se Notice of Appeal. Tucker’s letter indicates that his appeal is
“based upon Ineffective Assistance of Counsel.”
II.
Pursuant to Anders v. California, defense counsel may seek to withdraw from
representing an indigent criminal defendant on appeal if, “after a conscientious
examination of” the case, counsel “finds [an appeal] to be wholly frivolous.” 386 U.S. at
744; see also United States v. Marvin, 211 F.3d 778, 779 (3d Cir. 2000). Defense
counsel’s request to withdraw must be accompanied by “a brief referring to anything in
the record that might arguably support the appeal.” Anders, 386 U.S. at 744. When
assessing an Anders motion to withdraw, we ask (1) whether counsel adequately fulfilled
the requirements of Third Circuit Local Appellate Rule 109.2(a) by thoroughly searching
the record for arguably appealable issues and explaining why those issues are frivolous;
and (2) whether an independent review of the record reveals any nonfrivolous issues.
United States v. Youla, 241 F.3d 296, 300 (3rd 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 and citation omitted).
Defense counsel complied with Third Circuit Local Appellate Rule 109.2(a).
Counsel’s Anders brief identifies four potential issues for appeal: (1) the district court’s
jurisdiction over this action; (2) the validity of Tucker’s plea; (3) the reasonableness and
legality of Tucker’s sentence; and (4) the ineffective assistance of counsel. The Anders
brief then explains why there are no non-frivolous issues for appeal.
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Based on our independent review, we reach the same conclusion. First, the district
court’s jurisdiction properly arose under 18 U.S.C. § 3231. Any challenge to the district
court’s jurisdiction would therefore be frivolous.
Second, the district court properly conducted the plea hearing. During that
hearing, the District Court: advised and questioned Tucker pursuant to Rule 11(b)(1) of
the Federal Rules of Criminal Procedure; determined that there was sufficient factual
basis for Tucker’s guilty plea; and ensured that the plea was knowing and voluntary and
that there were no questions as to Tucker’s comprehension or competence. Tucker’s plea
was therefore indisputably valid.
Third, we agree that any appeal of Tucker’s sentence would be frivolous. The
District Court fully complied with Rule 32 of the Federal Rules of Criminal Procedure in
imposing its sentence. The sentence was also substantively and procedurally reasonable.
See United States v. Lessner, 498 F.3d 185, 203 (3d Cir. 2007) (“We review a sentence
for reasonableness, evaluating both its procedural and substantive underpinnings.”). The
district court followed this Court’s three-step sentencing process by (1) calculating the
applicable Guidelines range; (2) ruling on all departure motions; and (3) exercising the
court’s discretion by considering all relevant 18 U.S.C. § 3553(a) factors. United States
v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). The District Court then imposed a
substantively reasonable sentence well below the Guidelines range. See United States v.
Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc) (explaining that a procedurally sound
sentence will be affirmed “unless no reasonable sentencing court would have imposed the
same sentence on that particular defendant for the reasons the district court provided”);
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see also Lessner, 498 F.3d at 204 (“A sentence that falls within the recommended
Guidelines range, while not presumptively reasonable, is less likely to be unreasonable
than a sentence outside the range.”). Any appeal of the District Court’s sentence would
be frivolous for an additional reason: Pursuant to the Plea Agreement, Tucker agreed not
to appeal his sentence if it “f[ell] within or below the Guidelines range that result[ed]
from the agreed total Guidelines offense level of 42.” Because Tucker’s sentence of 264
months is well below the relevant Guidelines range, Tucker’s Plea Agreement bars him
from challenging the sentence. See United States v. Khattak, 273 F.3d 557, 562 (3d Cir.
2001) (“While it may appear unjust to allow criminal defendants to bargain away
meritorious appeals, such is the necessary consequence of a system in which the right to
appeal may be freely traded.” (quoting United States v. Howle, 166 F.3d 1166, 1169
(11th Cir. 1999)).
Finally, Tucker’s claim for ineffective assistance of counsel is not ripe. Where, as
here, there are no facts in the record upon which an ineffective assistance claim can be
evaluated, this Court “defer[s] the issue of ineffectiveness of trial counsel to a collateral
attack.” United States v. Wise, 515 F.3d 207, 215 (3d Cir. 2008) (quotation marks and
citation omitted). Thus, any such claim must be raised in an appropriate habeas petition
pursuant to 28 U.S.C. § 2255.
III.
For the reasons stated above, we affirm the District Court’s judgment of sentence,
without prejudice to Tucker filing a separate proceeding raising a claim that counsel was
ineffective, and grant counsel’s Anders motion.
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