United States v. Cotha Grant ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-3167
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UNITED STATES OF AMERICA
v.
COTHA S. GRANT,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 1-08-cr-00096-001)
U.S. District Judge: Honorable Yvette Kane
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Submitted Under Third Circuit L.A.R. 34.1(a)
October 3, 2023
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Before: SHWARTZ, MATEY, and SCIRICA Circuit Judges.
(Filed: October 5, 2023)
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OPINION ∗
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∗
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
SHWARTZ, Circuit Judge.
Cotha Grant appeals the District Court’s judgment for his violation of the terms of
his supervised release. Because there are no nonfrivolous issues warranting review, we
will grant his counsel’s motion to withdraw under Anders v. California, 386 U.S. 738(1967), and affirm.
I
In 2008, Grant pled guilty to possession with intent to distribute cocaine base in
the United States District Court for the Middle District of Pennsylvania and was
sentenced to 140 months’ imprisonment and three years’ supervised release. Grant was
released from custody in May 2018 and commenced his term of supervised release. In
July 2020, Grant was charged in Pennsylvania state court with violations of state drug
and firearms laws. At that point, he had also failed three drug tests. Due to this conduct,
the Probation Office filed a petition to revoke Grant’s supervised release.
By the time of Grant’s revocation hearing, he had been convicted of the July 2020
state drug felony. At the revocation hearing, Grant admitted that he had committed a
Grade A violation of his terms of supervised release. This violation, when combined
with his Criminal History Category of VI, resulted in a United States Sentencing
Guidelines (“Guidelines”) range of thirty-three to forty-one months’ imprisonment.
However, because Grant’s original offense was a Class C Felony, the applicable
Guidelines range became the statutory maximum of twenty-four months. See U.S.S.G. §
7B1.4(b)(1); 18 U.S.C. § 3583(e)(3).
2
Grant requested that the sentence run concurrently with his state sentence and
testified that he completed a drug treatment program in September 2021 and opened a
fast-food restaurant. His counsel also mentioned Grant’s mental health and speech
difficulties. The Government requested a consecutive twenty-four-month sentence,
noting that after Grant pled guilty to the state offense, he failed to appear on his voluntary
surrender date and was apprehended only after he led the police on a high-speed chase.
The District Court, after considering these facts, imposed a sentence of twenty-four
months’ imprisonment to run consecutively to the state sentence, concluding that this was
“appropriate in order to provide adequate community protection and deterrence.” App.
23.
Grant appeals, and his appointed counsel has moved to withdraw under Anders. 1
II 2
A
Our local rules allow defense counsel to file a motion to withdraw and an
accompanying brief under Anders when counsel has reviewed the record and concludes
that “the appeal presents no issue of even arguable merit.” Third Circuit L.A.R. 109.2(a).
When counsel submits an Anders brief, we must determine: “(1) whether [he] adequately
fulfilled the rule’s requirements; and (2) whether an independent review of the record
1
Grant did not file a brief on his own behalf despite having the option to do so.
2
The District Court had jurisdiction under 18 U.S.C. §§ 3231 and 3605. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
In the Anders context, we exercise plenary review to determine if the record
presents any nonfrivolous issues. Simon v. Gov’t of V.I., 679 F.3d 109, 114 (3d Cir.
2012) (citing Penson v. Ohio, 488 U.S. 75, 80-83 & n.6 (1988)).
3
presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.
2001). An issue is frivolous if it “lacks any basis in law or fact.” McCoy v. Ct. of
Appeals of Wis., Dist. 1, 486 U.S. 429, 438 n.10 (1988).
To determine whether counsel fulfilled his obligations, we examine the Anders
brief to see if it: (1) shows that counsel has thoroughly examined the record in search of
appealable issues, identifying those that arguably support the appeal, even if “wholly
frivolous,” Smith v. Robbins, 528 U.S. 259, 285 (2000); and (2) explains why those
issues are frivolous, United States v. Marvin, 211 F.3d 778, 780-81 (3d Cir. 2000). If
counsel satisfies these requirements, “then we may limit our review of the record to the
issues counsel raised.” United States v. Langley, 52 F.4th 564, 569 (3d Cir. 2022).
B
Grant’s counsel has satisfied his Anders obligations. Counsel correctly recognized
that, because Grant admitted he violated the terms of his supervised release, his appellate
issues are limited to the District Court’s jurisdiction, the voluntariness of his admission,
and the reasonableness of his sentence. See United States v. Broce, 488 U.S. 563, 569
(1989). The Anders brief explains why any challenge to the Court’s jurisdiction, the
violation finding, and the sentence lacks support. Therefore, counsel’s brief is sufficient,
Youla, 241 F.3d at 300, and we agree that there are no nonfrivolous issues for appeal.
First, the District Court had jurisdiction over the underlying federal drug offense
under 18 U.S.C. § 3231 and was authorized to revoke the term of supervised release for
that offense under 18 U.S.C. § 3583(e). Thus, any appeal challenging the District Court’s
jurisdiction to revoke Grant’s supervised release would be frivolous.
4
Second, Grant’s admission that he violated the terms of his supervised release was
counseled and voluntary. 3 Broce, 488 U.S. at 569. Grant was provided with notice of the
alleged supervised release violations and the opportunity for a revocation hearing and
thus due process was satisfied. A defendant can waive such a hearing and the associated
rights if the “totality of the circumstances” show that his waiver was voluntary. United
States v. Manuel, 732 F.3d 283, 291 (3d Cir. 2013) (citation and internal quotations
marks omitted). “[R]igid or specific colloquies with the district court” are not required.
Id. (citation and internal quotations marks omitted). Rather, the circumstances need only
show that the defendant is aware of “both the rights afforded him [] and the consequences
of relinquishing those rights.” Id. (citation and internal quotations omitted). The record
so reflects. At the revocation hearing, Grant was advised or reflected an understanding
of: (1) the nature of the violation, (2) the Guidelines range and statutory maximum term
of imprisonment for his violation, and (3) his right to have a hearing at which he could
testify, call witnesses, and submit evidence. Thus, Grant was informed of his rights and
the consequences of relinquishing those rights when he admitted his guilt. As a result,
any appeal contesting the voluntariness of his admission would be frivolous. 4
3
Because Grant did not raise any objections at the revocation hearing, we review
the District Court’s decision for plain error. United States v. Plotts, 359 F.3d 247, 248-49
(3d Cir. 2004).
4
There is also a factual basis for the plea. In addition to Grant’s admission, his
state court conviction proves he committed a state crime while on supervised release.
See United States v. Lloyd, 566 F.3d 341, 344 (3d Cir. 2009).
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Third, Grant’s sentence was procedurally and substantively reasonable. 5 As to
procedural reasonableness, the District Court followed United States v. Gunter’s three-
step procedure, which requires a court to calculate the Guidelines range, decide on
departure motions, and apply the factors in 18 U.S.C. § 3553(a). 6 462 F.3d 237, 247 (3d
Cir. 2006). The District Court accurately calculated a Guidelines range of thirty-three to
forty-one months because Grant committed a Grade A violation of supervised release,
U.S.S.G. § 7B1.1(a)(1), and his criminal history category was VI, U.S.S.G. § 7B1.4.
Because the Guidelines range exceeded the statutory maximum of twenty-four months,
the statutory maximum became the governing range. 18 U.S.C. § 3583(e)(3) (identifying
a two-year statutory maximum if the offense that resulted in the term of supervised
release is a class C felony); U.S.S.G. § 7B1.4(b)(3)(A) (stating where the statutory
5
Because Grant did not object at sentencing, we review the procedural challenge
to his sentence for plain error. See United States v. Flores-Mejia, 759 F.3d 253, 256 (3d
Cir. 2014) (en banc). We review the substantive reasonableness of a sentence for abuse
of discretion. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Azcona-
Polanco, 865 F.3d 148, 151 (3d Cir. 2017).
6
In the revocation context, the District Court is not required to consider all the
§ 3553(a) factors. See 18 U.S.C. § 3583(e) (noting that a district court may revoke a term
of supervised release after considering § 3553(a)(1) (the nature and circumstances of the
offense and the history and characteristics of the defendant), § 3553(a)(2)(B) (the need
for adequate deterrence), § 3553(a)(2)(C) (the need to protect the public from further
crimes of the defendant), § 3553(a)(2)(D) (the need to provide the defendant with
educational or vocational training, medical care, or correctional treatment), § 3553(a)(4)
(the kinds of sentence and the sentencing range established in the Sentencing Guidelines),
§ 3553(a)(5) (any pertinent policy statement issued by the Sentencing Commission),
§ 3553(a)(6) (the need to avoid unwarranted sentencing disparities among defendants
with similar records), and § 3553(a)(7) (the need to provide restitution to any victims of
the offense)).
6
maximum term is less than the minimum of the applicable Guidelines range, the statutory
maximum shall be substituted for the applicable range).
There were no departure motions, and the District Court considered the applicable
§ 3553(a) factors. See 18 U.S.C. § 3583(e). The Court heard arguments from Grant and
his counsel regarding his drug treatment, mental health difficulties, remorse, and recent
activities, including opening a restaurant. The Court then explained that although Grant
had undergone “successful [drug] treatment,” he also subsequently had “a number of run-
ins with the law,” and therefore a consecutive sentence of twenty-four months was
“appropriate in order to provide adequate community protection and deterrence.” App.
23. The Court’s discussion indicates that it meaningfully considered Grant’s colorable
arguments concerning his background and latest violation. See United States v.
Thornhill, 759 F.3d 299, 311 (3d Cir. 2014) (noting that, “[i]n some cases a brief
statement will suffice,” provided that a court does not ignore a colorable argument raised
by a party regarding the applicability of one of the § 3553(a) factors). As such, any
argument that Grant’s sentence was procedurally unreasonable would be frivolous.
Any objection to the substantive reasonableness of Grant’s sentence would also
lack merit. A sentence is substantively reasonable “unless no reasonable sentencing court
would have imposed the same sentence on that particular defendant for the reasons the
district court provided.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en
banc). Because the sentence here falls within the Guidelines range, we can presume its
reasonableness. See Rita v. United States, 551 U.S. 338, 347 (2007). Furthermore, the
District Court had discretion to run the term of imprisonment consecutively, 18 U.S.C.
7
§ 3584; see also U.S.S.G. § 7B1.3(f) (recommending that the terms of imprisonment
imposed upon revocation of supervised release be served consecutively), and did so
based on Grant’s multiple “run-ins with the law” while on supervised release, including
“fleeing and eluding, lying to police, [and] failure to appear.” App. 23. Moreover, a
revocation sentence is meant to “sanction . . . the defendant’s breach of trust, while taking
into account, to a limited degree, the seriousness of the underlying violation.” United
States v. Dees, 467 F.3d 847, 853 (3d Cir. 2006) (citation and internal quotation marks
omitted). The consecutive sentence reflects punishment for Grant’s breach of trust,
which is distinct from the punishment for his violation of state law. Given the statutory
discretion, the Guidelines recommendation, and the fact that Grant committed his state
crime just twenty-six months after his release from a lengthy prison sentence, Grant’s
sentence was substantively reasonable and no nonfrivolous argument to the contrary
exists.
III
For the foregoing reasons, we will grant counsel’s motion to withdraw and affirm.
8