United States v. Jones , 114 F. App'x 492 ( 2004 )


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  •                                                                                                                            Opinions of the United
    2004 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    11-8-2004
    USA v. Jones
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 02-4598
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    Recommended Citation
    "USA v. Jones" (2004). 2004 Decisions. Paper 144.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2004/144
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 02-4598
    UNITED STATES OF AMERICA
    v.
    DONALD JONES,
    a/k/a HAFIZ SHABUR
    Donald Jones,
    Appellant
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE EASTERN DISTRICT OF PENNSYLVANIA
    D.C. Crim. No. 02-cr-00244-1
    District Judge: The Honorable Berle M. Schiller
    Submitted Under Third Circuit LAR 34.1(a)
    September 30, 2004
    Before: ROTH, BARRY, and CHERTOFF, Circuit Judges
    (Opinion Filed: November 8, 2004)
    OPINION
    BARRY, Circuit Judge
    Donald Jones was charged with being a convicted felon in possession of a firearm
    in violation of 
    18 U.S.C. §§ 922
    (g)(1) and 924(e). He pled guilty, and was sentenced to
    180 months imprisonment and five years of supervised release.
    Jones, pro se, appealed the judgment of sentence, and trial counsel was appointed
    to represent Jones on appeal. After reviewing the record, counsel filed a brief pursuant to
    Anders v. California, 
    386 U.S. 738
     (1967), requesting permission to withdraw because he
    was unable to discern any non-frivolous issues for review. Jones was subsequently
    provided notice of his counsel’s desire to withdraw. He has not filed a pro se brief.
    The District Court had jurisdiction under 
    18 U.S.C. § 3231
    , and we have
    jurisdiction under 
    28 U.S.C. § 1291
     and 
    18 U.S.C. § 3742
    (a). We will grant counsel’s
    motion to withdraw and will affirm the judgment of sentence.
    I.
    When counsel submits an Anders brief, we must perform a two part inquiry. First,
    we must determine whether counsel has satisfied L.A.R. 109.2(a). United States v. Youla,
    
    241 F.3d 296
    , 300 (3d Cir. 2001). To discharge his duty pursuant to L.A.R. 109.2(a),
    counsel’s brief must “satisfy the court that counsel has thoroughly examined the record in
    search of appealable issues” and “explain why the issues are frivolous.” 
    Id.
     Although
    counsel is not required to raise and reject every possible claim, he still must
    conscientiously examine the record. 
    Id.
    Second, we must be satisfied that our independent review of the record does not
    reveal any non-frivolous issues. 
    Id.
     If the Anders brief appears adequate on its face, “the
    2
    proper course ‘is for the appellate court to be guided in reviewing the record by the
    Anders brief itself.’” 
    Id. at 301
    (quoting United States v. Wagner, 
    103 F.3d 551
    , 553 (7th
    Cir. 1996)). We conclude that the Anders brief is adequate and, thus, it guides our
    independent review of the record. See Youla, 
    241 F.3d at 301
    .
    II.
    As required by Anders, Jones’ counsel has highlighted portions of the record that
    could putatively support an appeal. Counsel has identified two possible issues: (1) the
    District Court’s refusal to continue the sentencing hearing in order to clarify Jones’
    criminal record; and (2) the District Court’s decision to apply 
    18 U.S.C. § 924
    (e). After
    reviewing the record, we agree with counsel that these issues are frivolous.
    In his Anders brief, counsel explained that, prior to the sentencing hearing, he had
    moved for a continuance in order to determine whether Jones had two or three felony
    drug convictions. At the sentencing hearing, however, it became apparent that a
    continuance was not necessary because counsel had been provided with certified copies
    of Jones’ convictions, counsel and Jones had reviewed those records and stipulated to
    them, and the Assistant U.S. Attorney answered to counsel’s satisfaction any questions
    concerning those records. Any need to delay the sentencing was obviated, and the
    District Court did not abuse its discretion when it denied the request for a continuance
    that counsel had previously made.
    Second, the District Court correctly applied 
    18 U.S.C. § 924
    (e). While Jones
    3
    claimed that he only recalled two prior felony drug convictions, certified copies of three
    such convictions were produced.
    For the reasons stated above, we will grant counsel’s request to withdraw and will
    affirm the judgment of sentence.
    4
    

Document Info

Docket Number: 02-4598

Citation Numbers: 114 F. App'x 492

Judges: Roth, Barry, Chertoff

Filed Date: 11/8/2004

Precedential Status: Non-Precedential

Modified Date: 11/5/2024