United States v. Raymon Walters ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 22-1812
______________
UNITED STATES OF AMERICA
v.
RAYMON WALTERS,
Appellant
________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Crim. No. 1:19-cr-00176)
District Judge: Honorable Robert B. Kugler
________________
Submitted Under Third Circuit L.A.R. 34.1(a)
on March 28, 2023
Before: MATEY, FREEMAN, and FUENTES, Circuit Judges
(Opinion filed: November 15, 2023)
__________
OPINION*
__________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FREEMAN, Circuit Judge.
Raymon Walters was convicted for illegally possessing a firearm in violation of 18
U.S.C. § 922(g)(1) and was sentenced to 82 months’ imprisonment. He appealed, and his
attorney filed a motion to withdraw under Anders v. California, 386 U.S. 738 (1967),
along with a brief contending that there are no nonfrivolous issues warranting review.
Walters filed a pro se brief on the merits of his appeal. After reviewing counsel’s brief,
we conclude that there is arguable merit to one of the issues counsel addressed. We also
conclude that there is arguable merit to an additional issue that was not addressed in the
Anders brief. So we will discharge current counsel, appoint substitute counsel, and order
supplemental briefing in accordance with this opinion.
I
We write primarily for the parties and recount only the facts most important to our
decision. On May 21, 2018, Camden police received a dispatch that a Black male
dressed in all black had brandished a gun at the corner of Broadway and MLK Boulevard,
jumped into a taxi, and headed south on Broadway. Two officers in separate patrol
vehicles spotted a man fitting the suspect’s description at the corner of Broadway and
Line streets—about half a mile south of the location of the reported incident—sitting on a
bicycle and speaking to a woman in a car. That man was later identified as Raymon
Walters.
Officer Baahir Starkey pulled his vehicle up alongside Walters, and Officer Megan
Watts stopped her vehicle behind Officer Starkey’s. Officer Starkey asked Walters if he
had heard or seen anything about a gun. Walters responded that he had not, and then he
2
tried to show Officer Starkey a video on his cell phone. After a brief further interaction,
Walters took off running.
Officer Starkey ordered Walters to stop, but he kept running. Both officers
pursued Walters on foot and saw him discard two items during the chase: a cellphone and
a pistol later found to be loaded with eight bullets. Officer Starkey ultimately subdued
and arrested Walters.
At the police station, Walters was read and waived his Miranda rights. He agreed
to an interview and admitted to possessing a gun despite knowing that his prior felony
conviction prohibited him from doing so. At some point after Walters’s arrest, police
determined that he was not the individual who had brandished a gun on the corner of
Broadway and MLK Boulevard.
Walters was charged in a one-count indictment with possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). A jury convicted him, and the
District Court sentenced him to 82 months’ imprisonment. He timely appealed.
II1
Upon receiving an Anders motion, we must decide whether the appeal is wholly
frivolous. United States v. Youla, 241 F.3d 296, 299 (3d Cir. 2001). If so, we grant
counsel’s motion to withdraw and dismiss the appeal. Id. But if we “find[] any of the
legal points arguable on their merits (and therefore not frivolous),” we must appoint new
counsel to argue the appeal. Id. at 300 (quoting Anders, 386 U.S. at 744). We exercise
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over
this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
3
plenary review to determine whether there are any non-frivolous issues. Simon v. Gov’t
of Virgin Islands, 679 F.3d 109, 114 (3d Cir. 2012).
III
Under Anders, court-appointed counsel may seek to withdraw from representation
if—after careful examination of the record—counsel determines there are no non-
frivolous arguments to make on appeal. In seeking to withdraw, counsel must file a brief
identifying “anything in the record that might arguably support the appeal.” Anders, 386
U.S. at 744. We then evaluate counsel’s brief by answering two questions: (1) whether
counsel has fulfilled the requirements of Third Circuit L.A.R. 109.2(a); and (2) whether
“an independent review of the record presents any non-frivolous issues.” United States v.
Langley, 52 F.4th 564, 569 (3d Cir. 2022).
A
We are satisfied that counsel has complied with his obligations under Anders and
L.A.R. 109.2(a). An Anders brief is considered adequate when it: “(1) demonstrates to
this Court that [counsel] has thoroughly examined the record in search of appealable
issues, and (2) explains why those issues are frivolous.” Id. The Anders brief must
evince a “conscientious examination” of the record, Anders, 386 U.S. at 744, but counsel
“need not raise and reject every possible claim.” Youla, 241 F.3d at 300. If counsel’s
submission is deemed adequate, “then we may limit our review of the record to the issues
counsel raised.” Langley, 52 F.4th at 569.
4
Here, counsel has identified six issues that could potentially provide grounds for
an appeal and explained why he believes each issue is ultimately frivolous.2 We agree
that five of these issues are frivolous, but we conclude that one issue has arguable merit.
Nonetheless, counsel’s brief reflects a “conscientious examination” of the record in
search of appealable issues for his client, so we are satisfied that counsel has fully
complied with his obligations under L.A.R. 109.2(a). Anders, 386 U.S. at 744.
B
Because counsel has submitted an adequate Anders brief, we proceed to the
second step of the Anders inquiry: a “review [of] the record before us, guided by
counsel’s brief, in search of any non-frivolous issues.” Langley, 52 F.4th at 575. We
address the issues Walters included in his pro se brief only to the extent that they are
discussed in counsel’s brief. See id. at 569 (holding that, when counsel has fulfilled his
obligation under Anders, “we may limit our review of the record to the issues counsel
raised”).
1
We begin with the issues that we agree are frivolous. First, Walters was properly
charged with violating 18 U.S.C. § 922(g)(1). In accordance with Rehaif v. United
States, 139 S. Ct. 2191, 2194 (2019), the superseding indictment charged that Walters
knowingly possessed a firearm after being convicted of a crime punishable by more than
a year of imprisonment and that Walters knew he had been previously convicted of such
2
Counsel also listed several additional issues that Walters urged him to raise on appeal
and provided a short explanation as to why he believes that each is frivolous.
5
a crime. Any challenge to the adequacy of the superseding indictment would be
frivolous.
Second, there is no non-frivolous argument challenging the District Court’s denial
of Walters’s suppression motion. The District Court correctly determined that no seizure
occurred until Walters was physically restrained and arrested by the officers after he had
run from them, discarding a firearm in the process. See United States v. Brown, 448 F.3d
239, 245 (3d Cir. 2006) (“A seizure occurs when there is either (a) a laying on of hands
or application of physical force to restrain movement, even when it is ultimately
unsuccessful, or (b) submission to a show of authority.” (internal quotation marks
omitted)). At that point, probable cause existed for Walters’s arrest.
Third, any challenge to the denial of Walters’s bifurcation motion would be
frivolous. Defense counsel asked the District Court to bifurcate the jury’s consideration
of the elements of the § 922(g)(1) charge, such that it would hear evidence of Walters’s
prior felony convictions only after reaching a verdict as to whether he possessed the
firearm at issue in the case. But we have held that there are good reasons not to bifurcate
trials involving only a § 922(g)(1) charge, see United States v. Jacobs, 44 F.3d 1219,
1223 (3d Cir. 1995), and nothing in this record indicates that bifurcation was required
here.
Fourth, the trial evidence was sufficient as to each element of a § 922(g)(1)
violation. In particular, there was sufficient evidence that the firearm Walters possessed
had traveled in foreign commerce. So there is no non-frivolous basis to challenge the
denial of Walters’s motion for a judgment of acquittal under Fed. R. Crim. P. 29.
6
Fifth, any argument challenging the lawfulness or reasonableness of the sentence
imposed by the District Court would be frivolous. The 82-month sentence is below the
statutory maximum and within the agreed-upon Sentencing Guidelines range. So the
sentence is presumptively reasonable. Rita v. United States, 551 U.S. 338, 347 (2007).
And nothing in the record calls the sentence’s reasonableness into doubt. Further, the
record as a whole reflects that the District Court undertook a rational and meaningful
consideration of the factors enumerated in 18 U.S.C. § 3553(a). See United States v.
Grier, 475 F.3d 556, 571 (3d Cir. 2007).
We also agree with counsel’s assessment that the issues Walters urged him to raise
on appeal are frivolous. Specifically, we agree that (i) no evidence establishes that the
officers’ testimony or their reports were false; (ii) the trial prosecutor made no improper
comments in her opening statement concerning what the body-camera footage would
show; (iii) prosecutors are not required to present exculpatory evidence to grand juries,
but even if they were, Walters has not demonstrated that any such evidence existed; (iv)
§ 922(g)(1)’s interstate or foreign commerce requirement is not facially unconstitutional;
(v) there is no evidence that the prosecutor knew and failed to disclose the names of
eyewitnesses; and (vi) there is no evidence that additional body-camera footage was
available but not provided to the defense.
2
We now turn to the issue identified by counsel that we conclude has arguable
merit.
7
Before trial, defense counsel pursued a stipulation under which the parties would
inform the jury that, at the time of the events at issue, Walters knew that he had been
previously convicted of a felony that subjected him to § 922(g)(1)’s firearm prohibition.
See Old Chief v. United States, 519 U.S. 172, 190–92 (1997); Rehaif, 139 S. Ct. at 2194.
Defense counsel signed the stipulation, but Walters refused to sign it and made clear that
he did not want the stipulation presented to the jury. As a result, the government declined
to enter the stipulation, and it informed the District Court that it would seek to introduce
the certified judgments of Walters’s two prior drug convictions and the associated
incarceration records.
Defense counsel argued that the District Court should accept the stipulation
between the attorneys. He also argued that the District Court would commit error under
Old Chief if it did not compel the government to stipulate to the fact of the prior
conviction. But the District Court concluded that it could not force the government to
accept the stipulation.
In his Anders brief, counsel posits that the failure to force the government to enter
an Old Chief stipulation might have supported a non-frivolous appeal issue. But counsel
reasons that the District Court later eliminated the prejudice from any error by placing
limits on the government’s evidence. He points to the District Court’s ruling that the
government could introduce only “the fact of the conviction, what the crime was, the date
of the conviction[,] and what the sentence imposed was for both” prior convictions. App.
524. And the record shows that the government informed the jury (and introduced
documentary evidence) that Walters had prior convictions for “third degree possession
8
with intent to distribute marijuana on September 21st of 2011, and that he was sentenced
to a term of three years of imprisonment on that conviction” and “distribution of
marijuana within 500 feet of public housing on September 21st, 2011, and he was
sentenced to a term of three years of imprisonment at New Jersey State Prison.” App.
597.
In his Anders brief, counsel reasons that “[a]ll of these facts would have been
included in the Old Chief stipulation, so the jury would have heard them” even if the
District Court had required the government to enter the stipulation. Anders Br. at 31. We
disagree. If the parties had entered an Old Chief stipulation, the jury would not have
heard the nature of either prior conviction. See Old Chief, 519 U.S. at 174 (holding that it
is an abuse of discretion for a trial court in a § 922(g)(1) prosecution to reject a
defendant’s offer to stipulate to the fact of a prior qualifying conviction and instead admit
the full record of conviction); see also id. at 190–91 (“The most the jury needs to know is
that the conviction admitted by the defendant falls within the class of crimes that
Congress thought should bar a convict from possessing a gun, and this point may be
made readily in a defendant’s admission and underscored in the court’s jury
instructions.”).3 The jury also would not have learned the length of the sentence or
3
Old Chief stipulations generally state that, prior to the date the defendant allegedly
possessed the firearm, the defendant had been convicted of a crime punishable by more
than a year of imprisonment, and they include the name of the court in which the
conviction was sustained. See, e.g., United States v. Nasir, 982 F.3d 144, 151 & n.3 (3d
Cir. 2020), cert. granted, judgment vacated on other grounds, 142 S. Ct. 56 (2021);
United States v. Hoover, No. 17-cr-525, 2020 WL 859331, at *5 (D.N.J. Feb. 21, 2020),
aff’d, 857 F. App’x 721 (3d Cir. 2021) (“The stipulation presented to the jury bears
repeating: ‘Prior to April 23, 2017, the defendant, Shakey Hoover, was convicted of a
9
sentences actually imposed; it would have learned only that Walters was convicted of a
crime punishable by more than one year of imprisonment. So there is a non-frivolous
issue about whether the government was required to accept an Old Chief stipulation in
these circumstances.
C
Our independent review of the record has yielded an additional non-frivolous issue
that was not addressed in the Anders brief: whether 18 U.S.C. § 922(g)(1), as applied to
Walters, is consistent with the Second Amendment.
In June 2022—two months after the District Court entered its judgment of
sentence in Walters’s case—the Supreme Court issued its opinion in New York State Rifle
& Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). In Bruen, the Court “announced a
new framework for analyzing restrictions on the possession of firearms.” Atkinson v.
Garland, 70 F.4th 1018, 1019 (7th Cir. 2023). It held that, when an individual raises a
Second Amendment challenge, “the government must affirmatively prove that its
firearms regulation is part of the historical tradition that delimits the outer bounds of the
right to keep and bear arms.” Bruen, 142 S. Ct. at 2127.
One year later, we relied on Bruen to address an as-applied Second Amendment
challenge to 18 U.S.C. § 922(g)(1). In Range v. Attorney General United States of
America, we held “that the Government has not shown that the Nation’s historical
crime punishable by imprisonment for a term exceeding one year in the Superior Court of
New Jersey, Essex County.’”).
10
tradition of firearms regulation supports depriving [the plaintiff] of his Second
Amendment right to possess a firearm.” 69 F.4th 96, 106 (3d Cir. 2023) (en banc).
After Bruen and Range, several individuals charged under § 922(g)(1) have
asserted that the statute violates the Second Amendment as applied to them. Those
challenges have had mixed results, and this Court is poised to address some of those
cases on appeal. See, e.g., United States v. Hendricks, No. 3:22-CR-397, 2023 WL
6276681, *6–*12 (M.D. Pa. Sept. 26, 2023) (denying an as-applied Second Amendment
challenge to a § 922(g)(1) indictment); United States v. Quailes, No. 1:21-CR-0176, 2023
WL 5401733 (M.D. Pa. Aug. 22, 2023) (dismissing a § 922(g)(1) indictment and
concluding that the statute violates the Second Amendment as applied to the defendant),
appeal docketed, No. 23-2533 (3d Cir. Aug. 24, 2023).
Without briefing about the impact of Bruen and Range on Walters’s case, we
cannot conclude that an as-applied Second Amendment challenge would be frivolous. So
we will direct the parties to address this issue upon the appointment of new counsel.
* * *
For the foregoing reasons, we grant current counsel’s motion for leave to
withdraw and direct the Clerk of Court to appoint new counsel and set a new briefing
schedule. Upon the appointment of new counsel, the parties shall limit their briefs to the
following issues:
(1) Whether Walters’s express wishes not to enter the proposed stipulation
affected the government’s obligations under Old Chief to stipulate to the fact of a
prior conviction;
11
(2) Whether the inclusion of a mens rea element in the proposed stipulation
affected the government’s obligations under Old Chief to stipulate to the fact of a
prior conviction;
(3) Whether any appellate issue related to the mens rea element of the
proposed stipulation was preserved at trial; and
(4) Whether 18 U.S.C. § 922(g)(1) as applied to Walters violates his
Second Amendment rights under New York State Rifle & Pistol Ass’n, Inc. v.
Bruen, 142 S. Ct. 2111 (2022) and Range v. Attorney General United States of
America, 69 F.4th 96 (3d Cir. 2023) (en banc).
12