United States of v. Nixon , 176 F. App'x 338 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-21-2006
USA v. Nixon
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1648
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Recommended Citation
"USA v. Nixon" (2006). 2006 Decisions. Paper 1233.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-1648
UNITED STATES OF AMERICA
v.
MARK A. NIXON,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 04-cr-00037-1)
District Judge: Honorable Terrence F. McVerry
Submitted Under Third Circuit LAR 34.1(a)
April 20, 2006
Before: SLOVITER and AMBRO, Circuit Judges,
and DuBOIS,* District Judge
(Opinion filed: April 21, 2006)
OPINION
AMBRO, Circuit Judge
*
Honorable Jan E. DuBois, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
Mark A. Nixon pled guilty to one count of unlawful possession of a firearm by a
felon in violation of 18 U.S.C. § 922(g)(1), and was sentenced to a 120-month term of
incarceration, less 17 months for time served in state custody. Nixon’s counsel filed an
Anders motion to withdraw as counsel, asserting that all potential grounds for appeal are
frivolous. For the reasons set forth below, we grant that motion and affirm the judgment
of the District Court.1
I.
Because we write solely for the parties, we discuss only those facts necessary to
our decision. In 2003, Nixon was arrested for conduct that resulted in both a multiple-
count state indictment and a federal indictment for unlawful possession of a firearm by a
felon in violation of 18 U.S.C. § 922(g)(1). He was ultimately convicted in state court
and was sentenced to five to ten years.
Nixon was also convicted and sentenced by the United States District Court for the
Western District of Pennsylvania after both his state sentence was pronounced and the
Supreme Court ruled in United States v. Booker, 543 U.S. 220 (2005), that the United
States Sentencing Guidelines are advisory. The District Court found that, under the
advisory Guidelines, Nixon’s adjusted offense level was 30, reduced to 27 for acceptance
of responsibility pursuant to U.S.S.G. § 3E1.1(a) and (b), and his criminal history
1
The District Court exercised jurisdiction over this matter pursuant to 18 U.S.C. §
3231. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
2
category was VI. The resulting advisory sentencing range was 130 to 162 months, which
exceeded the statutory maximum of 120 months pursuant to 18 U.S.C. § 924(a)(2). Thus,
the advisory Guidelines sentence was 120 months. The District Court considered the
sentencing factors at 18 U.S.C. § 3553(a), used the statutory maximum of 120 months as
its starting point, and granted a 17 month downward adjustment for the time Nixon had
already served on his state court conviction. The District Court further ordered that
Nixon’s federal sentence be served concurrently with his state sentence. Nixon timely
appealed the judgment of conviction and sentence.
II.
Under Anders v. California, 386 U.S. 738 (1967), if counsel “finds [a] case to be
wholly frivolous, after a conscientious examination” of the potential grounds for appeal,
s/he should “advise the court and request permission to withdraw.” Id. at 744. This
request must be accompanied by “a brief referring to anything in the record that might
arguably support the appeal,” id., “explain[ing] to the court why the issues are frivolous,”
United States v. Marvin, 211 F.3d 778, 781 (3d Cir. 2000), and demonstrating that s/he
has “thoroughly scoured the record in search of appealable issues,” id. at 780. A copy of
counsel’s brief must be furnished to the appellant, who must be given time to raise
nonfrivolous arguments in a pro se brief. Anders, 386 U.S. at 744; Third Circuit LAR
109.2(a) (2000).
We “confine our scrutiny to those portions of the record identified by an adequate
Anders brief . . . [and] those issues raised in Appellant’s pro se brief.” United States v.
3
Youla, 241 F.3d 296, 301 (3d Cir. 2001). We do not “comb the record . . . for possible
non-frivolous issues that both the lawyer and his client may have overlooked,” as “[our]
duty is merely to determine whether counsel is correct in believing those grounds [raised
are] frivolous.” United States v. Wagner, 103 F.3d 551, 552-53 (7th Cir. 1996). We
grant counsel’s Anders motion to withdraw if we believe “that the attorney has provided
the client with a diligent and thorough search of the record for any arguable claim,”
McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988), and if we conclude
“that the appeal lacks any basis in law or fact,” id. at 438 n.10.
III.
After an independent examination of the record, including the Pre-Sentencing
Report, the sentencing transcript, and counsel’s Anders brief, it is clear that counsel has
satisfied his Anders burden and that no nonfrivolous issues from which to appeal exist.2
The District Court treated the Sentencing Guidelines as advisory, adequately considered
the § 3553(a) factors, and properly exercised its discretion in granting a downward
adjustment.
*****
Because there are no nonfrivolous issues for appeal, Nixon’s judgment of
conviction and sentence is hereby affirmed, and counsel is granted leave to withdraw.
2
Nixon has not filed a brief on his own behalf, despite having been informed of his
right to file a formal or informal brief. See Clerk’s Office Letter (July 29, 2005).]
4