United States v. DeMuro , 143 F. App'x 489 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
8-11-2005
USA v. DeMuro
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4657
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"USA v. DeMuro" (2005). 2005 Decisions. Paper 709.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 03-4657
UNITED STATES OF AMERICA
v.
FELIX DEMURO, JR.,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
Crim. No.: 97-310-4
District Judge: The Honorable J. Curtis Joyner
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 19, 2004
Before: ROTH and SMITH, Circuit Judges,
and DEBEVIOSE,* District Judge
(Filed: August 11, 2005)
OPINION OF THE COURT
SMITH, Circuit Judge.
On November 25, 2003, Appellant Felix DeMuro stipulated to violating the terms
of his supervised release by committing several state criminal offenses and by submitting
*
The Honorable Dickinson R. Debevoise, Senior District Judge for the District of New
Jersey, sitting by designation.
two urine samples which were positive for the presence of marijuana. In light of the
stipulated violation, the United States District Court for the Eastern District of
Pennsylvania imposed an additional term of twenty four months’ incarceration. DeMuro
filed a timely appeal.1
DeMuro’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), stating that no non-frivolous issues exist for appeal. Anders recognized that the
“constitutional requirement of substantial equality and fair process” necessitates that
appellate counsel make a conscientious examination for “anything in the record that
might arguably support the appeal.” Id. at 744. Thus, in United States v. Youla, 241 F.3d
296 (3d Cir. 2001), we declared that the “duties of counsel when preparing an Anders
brief are (1) to satisfy the court that counsel has thoroughly examined the record in search
of appealable issues, and (2) to explain why the issues are frivolous.” Id. at 300.
Counsel has satisfied these requirements. Because DeMuro stipulated to the fact
that he violated the terms of his supervised release, counsel asserts that the only possible
issue for appeal is the term of imprisonment imposed by the District Court. Such a
contention, counsel points out, is frivolous because the length of the sentence is
discretionary, and we have previously established in United States v. Schwegel, 126 F.3d
551 (3d Cir. 1997), that the sentencing ranges set out in U.S.S.G. § 7B1.4 are only
advisory. We agree with counsel’s assessment.
1
The District Court exercised jurisdiction under 18 U.S.C. § 3231. Appellate
jurisdiction exists under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
We are mindful of the Supreme Court’s decision in United States v. Booker, 125
S.Ct. 738 (2005), which declared that the sentencing guidelines are advisory only. Id. at
757. Booker does not affect this appeal inasmuch as DeMuro’s sentence did not result
from the application of a mandatory sentencing scheme.2 Schwegel, 126 F.3d at 552.
Accordingly, we will grant counsel’s motion to withdraw, and we will affirm the
judgment of the District Court. We certify that the issues presented in the appeal lack
legal merit and thus do not require the filing of a petition for writ of certiorari with the
Supreme Court. 3d Cir. LAR 109.2(b).
2
We note that DeMuro was notified by his counsel of the opportunity to file a pro se
brief with this Court, but that DeMuro declined to do so. Anders, 386 U.S. at 744, 3rd
Cir. L.A.R. 109.2(a).
3