United States v. Archie Carbaugh , 535 F. App'x 160 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-3976
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UNITED STATES OF AMERICA
v.
ARCHIE PORTER CARBAUGH,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-11-cr-00354-001)
District Judge: Honorable William W. Caldwell
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Submitted Pursuant to Third Circuit LAR 34.1(a)
June 28, 2013
Before: FUENTES, FISHER and CHAGARES, Circuit Judges.
(Filed: August 13, 2013 )
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OPINION
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FISHER, Circuit Judge.
Archie Carbaugh appeals from his conviction and sentence for possession of an
unregistered firearm, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. The U.S.
District Court for the Middle District of Pennsylvania sentenced Carbaugh to 36 months’
imprisonment followed by three years of supervised release after he pled guilty to the
offense. Carbaugh’s defense counsel has filed a motion pursuant to Anders v. California,
386 U.S. 738 (1967), requesting leave to withdraw and asserting that Carbaugh has no
nonfrivolous arguments on appeal. For the following reasons, we will grant counsel’s
motion to withdraw, and we will affirm.
I.
We write principally for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
In 2004, Carbaugh was convicted of a domestic violence misdemeanor in
Pennsylvania state court. As a result of this conviction, Carbaugh was prohibited from
possessing firearms. In March 2011, Carbaugh was sentenced to probation for an
unrelated traffic offense in the same court. Thereafter, when the county probation officer
visited Carbaugh, she observed a number of firearms inside his home. Because the
probation officer was aware of Carbaugh’s previous conviction, she contacted the
Pennsylvania State Police, who obtained a search warrant for his home. On March 25,
2011, the police executed the search warrant and recovered 112 firearms. One of the
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firearms was an unregistered .22 caliber rifle having a barrel length of 6¼ inches and an
overall length of 13 inches.1
On December 14, 2011, a grand jury returned a two-count indictment charging
Carbaugh with possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5841,
5861(d), and 5871, and possession of a firearm by a prohibited person, in violation of
18 U.S.C. § 922(g)(9). On March 26, 2012, Carbaugh entered into an agreement in
which he pled guilty to Count One of the indictment – possession of an unregistered
firearm. The parties further stipulated pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C) that the applicable sentencing range would be 36 to 60 months’
imprisonment. Without the plea agreement, Carbaugh would have potentially faced a
Sentencing Guidelines range of 84 to 105 months’ imprisonment.
On April 17, 2012, the District Court conducted a plea colloquy in which it
explained to Carbaugh that he had a right to plead not guilty, a right to a jury trial, a right
to appeal (directly and collaterally), and that he would give up his rights to trial and
appeal if he pled guilty. After the government presented its evidence, Carbaugh agreed to
the facts. When the District Court asked Carbaugh how he wished to plead to Count One
of the indictment, he responded, “Guilty.” App. at 53.
1
Federal law defines a “firearm” to include “a rifle having a barrel or barrels of
less than 16 inches in length,” and “a weapon made from a rifle if such weapon as
modified has an overall length of less than 26 inches or a barrel or barrels of less than 16
inches in length.” 26 U.S.C. § 5845(a)(3), (4). Individuals possessing “firearms” must
register them in the National Firearms Registration and Transfer Record. 26 U.S.C.
§ 5861(d).
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On September 27, 2012, the District Court sentenced Carbaugh to 36 months’
imprisonment followed by three years of supervised release. Carbaugh then filed a
timely notice of appeal.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291.
“Where, upon review of the district court record, counsel is persuaded that the
appeal presents no issue of even arguable merit, counsel may file a motion to withdraw
and supporting brief pursuant to Anders v. California, 386 U.S. 738 (1967).” Third
Circuit L.A.R. 109.2 (2011); see also United States v. Youla, 241 F.3d 296, 300 (3d Cir.
2001). When counsel submits an Anders brief, we must determine “(1) whether counsel
adequately fulfilled the rule’s requirements; and (2) whether an independent review of the
record presents any nonfrivolous issues.” Youla, 241 F.3d at 300.
III.
Counsel’s Anders brief identifies three potential issues on appeal: (1) whether
there was sufficient evidence in the record to support a guilty plea; (2) whether there was
a knowing and voluntary waiver of appellate rights; and (3) whether the potential
shortcomings in the plea colloquy, including the District Court’s failure to address
Carbaugh’s right to representation by counsel at trial, affected Carbaugh’s substantial
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rights. Counsel asserts that Carbaugh has no nonfrivolous arguments pertaining to these
issues.
We are satisfied that counsel has sufficiently reviewed the record for appealable
issues, and we agree that there are no nonfrivolous issues on appeal. With respect to the
sufficiency of the evidence, the record shows that the evidence outlined in the plea
colloquy covered all of the elements of the possession of an unregistered firearm offense:
the police found in Carbaugh’s home a .22 caliber rifle with a barrel length of 6¼ inches
and an overall length of 13 inches; the characteristics of the rifle indicate that it was a
firearm subject to the registration requirements of the National Firearms Act, 26 U.S.C.
§§ 5801-5872; and Carbaugh did not register the rifle in the National Firearms
Registration and Transfer Record.
It is also evident that Carbaugh knowingly and voluntarily waived his appellate
rights. During the plea colloquy, the District Court addressed Carbaugh, explained that
he had a right to a jury trial, a right to plead not guilty, and that he would be waiving his
appellate rights as a term of his plea agreement. Counsel for Carbaugh also took time to
address the waiver of these rights with Carbaugh on the record. Carbaugh then agreed to
the appellate waiver.
Finally, although the District Court may have erred under Rule 11(b)(1)(D) by
failing to inform Carbaugh during the plea colloquy that he had a right to be represented
by counsel at trial and at every other stage of the proceeding, this error was not brought to
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the District Court’s attention. When an error is raised for the first time on appeal, we
review for plain error and ask whether the error affected the defendant’s “substantial
rights.” Fed. R. Crim. P. 52(b). A Rule 11 error affects substantial rights when the
defendant can “show a reasonable probability that, but for the error, he would not have
entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). In
essence, the defendant must show “that the probability of a different result is sufficient to
undermine confidence in the outcome of the proceeding.” Id. (internal quotation marks
omitted).
Here, we are confident that the outcome of the proceeding was not affected by the
Rule 11 error. When the record reveals significant evidence of guilt, as this record does,
“one can fairly ask a defendant seeking to withdraw his plea what he might ever have
thought he could gain by going to trial.” Id. at 85. Given the incriminating evidence
presented by the government, the District Court’s almost complete recitation of
Carbaugh’s pertinent rights, the fact that Carbaugh was represented by counsel during the
hearing, and the fact that Carbaugh faced a sentencing range of 84 to 105 months’
imprisonment if he did not enter into the agreement, we cannot see how the District
Court’s oversight could have had any effect on Carbaugh’s assessment of his strategic
position.
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IV.
We will grant counsel’s motion to withdraw, and we will affirm the District
Court’s judgment of conviction and sentencing order.
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