United States v. Douglas , 67 F. App'x 733 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
6-16-2003
USA v. Douglas
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4103
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 02-4103
___________
UNITED STATES OF AMERICA
v.
ELISHA DERRICK DOUGLAS,
Appellant
___________
On Appeal from the United States District Court
for the District of New Jersey
District Court Judge: The Honorable Garrett E. Brown, Jr.
(D.C. Criminal No. 02-cr-00551)
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
June 5, 2003
Before: BARRY, FUENTES, Circuit Judges, and MCLAUGHLIN,* District Judge.
(Opinion Filed: June 16, 2003)
________________________
OPINION OF THE COURT
________________________
*
Hon. Mary A. McLaughlin, U.S. District Judge for the Eastern District of
Pennsylvania, sitting by designation.
FUENTES, Circuit Judge:
On July 18, 2002, Elisha Derrick Douglas entered a plea of guilty to one count of
illegally entering the United States after being deported subsequent to a conviction for an
aggravated felony, in violation of 8 U.S.C. § 1326. On October 21, 2002, the District Court
sentenced Douglas to a prison term of eighty-four (84) months, consecutive to another
undischarged term of imprisonment, and three years of supervised release. Douglas’s
counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), expressing his
belief that Douglas cannot raise any non-frivolous issues for our review, and directing us, as
is required under Anders, to the issues that he thought Douglas might raise on appeal.
Douglas filed a pro se brief urging us to exercise leniency in reducing his sentence. We have
appellate jurisdiction pursuant to 28 U.S.C. § 1291.1 Because there are no non-frivolous
issues to be raised on appeal, we will affirm the District Court’s judgment and grant defense
counsel’s motion.
First, counsel notes that the District Court complied with the requirements set forth
in Federal Rule of Criminal Procedure 11 during Douglas’s plea colloquy. Douglas was
sworn and advised of his constitutional rights, which he then waived. (App. 27-31) The
District Court established that Douglas was mentally competent and understood the nature
and consequences of the proceedings. Id. at 27-29, 35. The District Court determined that
Douglas’s decision to waive indictment and plead guilty was knowing and voluntary, and that
he had discussed his case with counsel. Id. at 29, 31-35. Finally, a factual basis for the count
1
Because we write primarily for the parties and they are quite familiar with the
factual background of this case, we proceed direct to the legal analysis.
2
was set forth on the record, and Douglas admitted his guilt. Id. at 36-37. Because all of the
statutory and constitutional requirements for a plea colloquy were met in this case, we agree
with counsel that no successful appellate issue can be raised in this regard.
Next, counsel notes that the District Court complied with the requirements of Federal
Rule of Criminal Procedure 32 in conducting Douglas’s sentencing proceeding. The District
Court confirmed that Douglas and his counsel had reviewed and discussed the Presentence
Investigation Report (“PSR”), and gave both the government and the defense an opportunity
to comment on the PSR. (App. 40-41) The District Court heard from defense counsel,
Douglas, and the government on the appropriate sentence to impose within the guideline
range. Id. at 41-45. Finally, the District Court advised Douglas of his right to appeal his
conviction. Id. at 47. Because all of the statutory requirements for a sentencing proceeding
were met in this case, we agree with counsel that no successful appellate issue can be raised
with respect to this issue.
Finally, counsel notes that there was no error in the sentence imposed by the District
Court. The charge to which Douglas pleaded guilty carried a statutory maximum sentence
of twenty (20) years. See 8 U.S.C. § 1326(b)(2). The parties agreed that the base offense
level was eight (8), see U.S.S.G. § 2L1.2(a), but also agreed that the level would be increased
by sixteen (16) because Douglas was previously convicted of a drug trafficking offense. See
U.S.S.G. § 2L1.2(b)(1)(A). Finally, the parties agreed that the offense level should be
reduced by three (3) because Douglas had accepted responsibility for his crime. See
U.S.S.G. § 3E1.1. The adjusted offense level, accordingly, was twenty-one (21). Based on
3
Douglas’s criminal history category of VI, he faced a sentencing range of seventy-seven (77)
to ninety-six (96) months. (PSR ¶ 71) Thus, the eighty-four (84) month sentence imposed
by the District Court was below the statutory maximum and within the guideline range.
Defense counsel notes also that the District Court imposed the sentence to run
consecutively with an undischarged term of imprisonment for drug distribution, aggravated
assault, and resisting arrest despite defense counsel’s request to have the sentence run
concurrently. (App. 41-42) U.S.S.G. § 5G1.3(c) permits a district court to impose a sentence
concurrently, partially concurrently, or consecutively in the court’s discretion. Here, the
District Court explained that it was imposing the sentence consecutively because of
Douglas’s extensive criminal record and the fact that he had sustained three new convictions
since his illegal reentry. Id. We do not think the District Court abused its discretion.2
Because the District Court’s sentencing determination is below the statutory maximum,
within the guideline range, and not an abuse of discretion, we agree with counsel that no
successful appellate issue can be raised with respect to the sentence.
After carefully reviewing the briefs and accompanying materials of record, we will
affirm the judgment. Counsel conducted a conscientious review of the record and concluded
that there were no non-frivolous issues that could be raised on appeal, as required by Anders,
2
In his informal brief, Douglas stated his understanding that the decision to impose
his sentence consecutively was within the District Court’s discretion. Nonetheless, he
asked this Court to exercise leniency to reverse the imposition of a consecutive sentence.
We only review the District Court’s decision to impose a consecutive sentence for an
abuse of discretion. Once we conclude that the District Court did not abuse its discretion,
as we have in this case, we do not have any further authority to interfere with the District
Court’s sentencing determination on leniency or other grounds.
4
386 U.S. at 744. Because counsel has complied with all of the procedures specified in
Anders, we will grant his motion for withdrawal.
_____________________________
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Judge Julio M. Fuentes
Circuit Judge
5