United States v. Sean Best , 430 F. App'x 128 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 10-2299
UNITED STATES OF AMERICA
v.
SEAN BEST, a/k/a “SHIZ,”
Appellant.
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D. C. No. 4-03-cr-00041-001)
District Judge: Honorable John J. Jones
Submitted under Third Circuit LAR 34.1
on March 18, 2011
Before: BARRY, CHAGARES and ROTH, Circuit Judges
(Opinion filed: June 7, 2011)
OPINION
ROTH, Circuit Judge:
This appeal arises from the District Court’s revocation of Sean Best’s term of
supervised release. After reviewing the record from the revocation of the supervised
release proceeding and finding no potentially meritorious issues for appeal, Best’s court-
appointed counsel seeks permission to withdraw pursuant to Third Circuit Local
Appellate Rule 109.2 and Anders v. California, 386 U.S. 738 (1967). For the reasons set
forth below, we determine that the issues presented in this appeal lack merit, and
therefore will grant court-appointed counsel’s withdrawal request and affirm the District
Court’s sentencing decision.
I. Factual Background
Because we write primarily for the parties, we only briefly summarize the facts of
this case. Best pleaded guilty to a charge of conspiracy to distribute cocaine and was
sentenced to 60 months’ incarceration and three years of supervised release. The District
Court reached this sentence by granting several downward departures from the prescribed
custody range under the Sentencing Guidelines of 151 to 188 months. The sentencing
judge explained that he was “going to give [Best] a chance” even though he did not “have
to give him a break . . ..” (A53.)
After completing his sentence on February 22, 2007, Best commenced his three-
year term of supervised release. Approximately two months later, Best distributed 3.4
grams of cocaine base to a confidential informant in exchange for cash. Approximately
six months later, law enforcement officers recovered 35.8 grams of cocaine base and 6.2
grams of cocaine hydrochloride while executing a search warrant at Best’s residence.
Best was arrested and indicted for possession of cocaine. On October 4, 2007, the
government sought to detain Best for violating his supervised release pending the
disposition of the new criminal charges.
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On March 12, 2010, Best pleaded guilty to the indictment and received a 65-
month term of incarceration for the new offense. The District Court then held a
revocation hearing on May 3, 2010. Best conceded through counsel that he had violated
the terms of his supervised release, and the government sought the maximum term of 24
months, asserting that although the original sentence was lenient, Best had not been
deterred from selling cocaine. Best’s counsel requested a variance, citing his full-time
employment, the death of his mother, and the loss of parental rights for his son. The
District Court determined, however, that a variance was inappropriate in light of Best’s
rapid return to crime after his release. After considering all of the factors listed in 18
U.S.C. § 3553, the judge sentenced Best to 24 months’ imprisonment. Best appealed, and
his court-appointed counsel filed an Anders brief pursuant to Third Circuit Local
Appellate Rule 109.2(a).1
1
Third Circuit L.A.R. 109.2(a) provides in relevant part:
Where, upon review of the district court record, trial counsel
is persuaded that the appeal presents no issue of even
arguable merit, trial counsel may file a motion to withdraw
and supporting brief pursuant to [Anders], which shall be
served upon the appellant and the United States. The United
States shall file a brief in response. Appellant may also file a
brief in response pro se. After all briefs have been filed, the
clerk will refer the case to a merits panel. If the panel agrees
that the appeal is without merit, it will grant trial counsel’s
Anders motion, and dispose of the appeal without appointing
new counsel . . . .
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II. Jurisdiction and Standard of Review
The District Court had subject matter jurisdiction over the underlying criminal
offense pursuant to 18 U.S.C. § 3231. District courts retain jurisdiction to revoke a term
of supervised release pursuant to Section 3583(e) of the Sentencing Reform Act of 1984,
18 U.S.C. § 3583(e). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742.
Our review of whether an appeal is frivolous is plenary. When presented with an
Anders brief, we determine whether counsel fulfilled the requirements of LAR 109.2 and
whether an independent review of the record presents any non-frivolous issues for appeal.
United States v. Coleman, 575 F.3d 316, 319 (3d Cir. 2009).
A district court’s decision to revoke a term of supervised release is reviewed for an
abuse of discretion. United States v. Maloney, 513 F.3d 350, 354 (3d Cir. 2008). Factual
findings supporting revocation are reviewed for clear error, while legal issues are subject
to de novo review. United States v. Poellnitz, 372 F.3d 562, 565-66 & n.6 (3d Cir. 2004).
We review a sentence imposed for a revocation of supervised release for reasonableness
related to the factors set forth in 18 U.S.C. 3553(a). See United States v. Bungar, 478
F.3d 540, 542 (3d Cir. 2007).
III. Discussion
Anders compels court-appointed counsel to “advise the court and request
permission to withdraw” if he “finds [an appeal] to be wholly frivolous, after a
conscientious examination of” the case. Anders, 386 U.S. at 744. Frivolous appeals lack
any basis in fact. McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 438 n.10
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(1988). The first inquiry is “whether counsel adequately fulfilled [L.A.R. 109.2’s]
requirements.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). If the Anders
brief appears adequate on its face, the Court independently reviews whether the record
presents any non-frivolous issues, limiting its review to “those issues raised in
Appellants’ pro se brief,” if any. Id. at 301. If the Court finds only frivolous issues, the
Court must grant court-appointed counsel’s motion, and dispose of the appeal without
appointing new counsel. 3d Cir. L.A.R. 109.2(a) (2010).
Court-appointed counsel has adequately fulfilled the L.A.R. 109.2 requirements.
He has conscientiously evaluated possible issues for appeal, considered them in detail,
and explained why those issues lack legal merit. The Government agrees with court-
appointed counsel’s assessment, and the pro se defendant has failed to submit a pro se
brief identifying any non-frivolous issues for appeal. We agree with the parties that
Best’s appeal of the revocation of his supervised release lacks arguable merit.
Moreover, our independent review of the record pursuant to Penson v. Ohio, 488
U.S. 75, 80-81 (1988), discloses no arguable grounds for direct appeal. We conclude that
the issues presented lack legal merit and that court-appointed counsel is not required to
file a petition for writ of certiorari with the Supreme Court. 3d Cir. L.A.R. 109.2(b).
IV. Conclusion
For the reasons set forth above, we will grant court-appointed counsel’s
withdrawal request and affirm the District Court’s judgment of sentence.
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