United States v. Keithley Parris ( 2023 )

NON-PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________
No. 22-1392
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UNITED STATES OF AMERICA
v.
KEITHLEY PARRIS,
Appellant
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On Appeal from the District Court
for the Virgin Islands, Division of St. Croix
(D.C. No. 1-18-cr-00010-003)
District Judge: Honorable Anne E. Thompson
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
on May 22, 2023
Before: RESTREPO, McKEE, and SMITH, Circuit Judges
(Filed: December 19, 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.
RESTREPO, Circuit Judge.
Appellant Keithley Parris appeals the final judgment, conviction, and sentence. His
appointed counsel, with the government’s support, has filed a motion to withdraw as
counsel and an Anders brief advising that there are no non-frivolous grounds for appeal.1
See Anders v. California, 386 U.S. 738 (1967). A jury convicted Parris of conspiracy to
possess cocaine with intent to distribute in violation of 21 U.S.C. § 846, and possession
with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). He was sentenced to
a mandatory minimum term of sixty months’ imprisonment and a four-year term of
supervised release pursuant to 21 U.S.C. § 841(b)(1)(B)(ii). For the reasons that follow, we
will dismiss the appeal and grant counsel’s motion to withdraw.
I.2
Parris orchestrated and participated in a conspiracy to smuggle cocaine into Miami
through a St. Croix airport. He recruited Don-Luke George, an airport employee, and Zion
Hazel to act as mules. The day before the flight to Miami, Parris gave George two
kilograms of cocaine packaged in four bricks. The following day, George passed the drugs
to Hazel in an airport bathroom. Parris monitored the unfolding operation by texting with
George and Hazel. George texted Parris when the handoff to Hazel was completed. Parris
1
Although Parris was permitted under Third Circuit Local Appellate Rule (“L.A.R.”)
109.2(a) to file a pro se brief in response to counsel’s Anders brief, he did not do so in
this case.
2
As we write for the benefit of the parties, who are familiar with the background of this
case, we set out only the facts and procedural history necessary for the discussion that
follows.
2
texted Hazel several times with messages, including “[t]hings set,” “[u] have ur passport,”
and “[u] done pass through TSA.” JA 251. Although the cellphone attributed to Parris was
not registered in his name, his number was saved in George’s phone under his first name,
“Keithley.” JA 242–43. Hazel was stopped by Customs and Border Protections Officers
before boarding the plane to Miami.
At the sentencing hearing on February 23, 2022, the District Court concluded that
the guideline range for Parris’s offenses was seventy-eight to ninety-seven months’
imprisonment. The District Court rejected the government’s request to increase the offense
level pursuant to U.S.S.G. § 2D1.2(b)(16)(A), finding that the record did not sufficiently
establish that Parris used fear to recruit George to participate in the conspiracy. After
considering Parris’s criminal history, the circumstances of his custody, and the nature of
the offense, the District Court granted a variance of eighteen months and imposed the
mandatory minimum sentence of five years of incarceration and four years of supervised
release. See 21 U.S.C. § 841(b)(1)(B)(ii).3
3
The District Court rejected the government’s request to increase the offense level
pursuant to U.S.S.G. § 2D1.2, subsection (16), finding that the record did not sufficiently
establish that Parris used fear to recruit George to participate in the conspiracy.
3
II.4
A. Motion to Withdraw
When, as here, defense counsel believes that a criminal appeal is “wholly frivolous,
after a conscientious examination” of the defendant’s case, “he should so advise the court
and request permission to withdraw.” Anders, 386 U.S. at 744; United States v. Youla, 241
F.3d 296, 299 (3d Cir. 2001). Along with such a request, defense counsel should submit “a
brief referring to anything in the record that might arguably support the appeal.” Youla,
241 F.3d at 299 (quoting Anders, 386 U.S. at 744). The brief must demonstrate that
“counsel has thoroughly examined the record in search of appealable issues” and must
“explain why [those] issues are frivolous.” Id. Accordingly, our review is twofold: we ask
first whether counsel adequately fulfilled the requirements of Anders, and second, “whether
an independent review of the record presents any nonfrivolous issues.” Id. (citing United
States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000)).5
Here, defense counsel does not address the legality of the sentence imposed—an
issue the notice of appeal he filed specifically raises—and thus the motion to withdraw
does not satisfy the Anders requirements. Even so, we may still grant counsel’s request to
4
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and 48 U.S.C. §
1612(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
in determining whether there are any non-frivolous issues for appeal. Simon v. Virgin
Islands, 679 F.3d 109, 114 (3d Cir. 2012).
5
Third Circuit L.A.R. 109.2(a) provides in relevant part that: “[w]here, 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), which must be served upon the appellant and
the United States.”
4
withdraw and dismiss the appeal if the issues that could have been raised are frivolous. See
United States v. Coleman, 575 F.3d 316, 321 (3d Cir. 2009); Marvin, 211 F.3d at 781. Our
independent review of the record and Parris’s sentence has not revealed any non-frivolous
basis upon which Parris can appeal. Because we conclude that there are no grounds for
setting aside Parris’s conviction or sentence, we will grant counsel’s motion to withdraw.
B. Sufficiency of the Evidence
We will begin by examining the single issue addressed in counsel’s Anders brief.
We agree with counsel that any argument concerning the sufficiency of the evidence lacks
merit. In reviewing a challenge to the sufficiency of evidence supporting a jury verdict,
“[w]e apply a ‘particularly deferential’ standard of review.” United States v. Peppers, 302
F.3d 120, 125 (3d Cir. 2002) (quoting United States v. Cothran, 286 F.3d 173, 175 (3d Cir.
2002)). We review the evidence in the light most favorable to the government and “will
affirm the verdict if ‘any rational juror could have found the challenged elements beyond
a reasonable doubt.’” United States v. Gonzalez, 905 F.3d 165, 179 (3d Cir. 2018) (quoting
Peppers, 302 F.3d at 125) (internal quotation marks omitted).
Here, the evidence at trial was sufficient to convict Parris of the charged offenses.
George, a cooperating co-defendant, testified that Parris recruited him to hand the cocaine
to Hazel at the St. Croix airport so that Hazel could transport the drugs to Miami. The
government corroborated George’s testimony by presenting video surveillance of George
and Hazel entering the bathroom where the hand-off took place and text messages sent
from Parris’s phone as he supervised the operation. The jury’s finding that George credibly
testified to Parris’s role as the conspiracy’s instigator and coordinator cannot be second-
5
guessed on appeal. See Peppers, 302 F.3d at 125 (noting that it is not this Court’s role to
“mak[e] an independent determination as to witnesses’ credibility”). Because a rational
jury could have found the elements of the crimes were established beyond a reasonable
doubt based on the evidence presented at trial, we must sustain the verdict on appeal. See
United States v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998). Accordingly, the sufficiency of
the evidence issue, as identified by defense counsel, is frivolous.
C. Legality of Parris’s Sentence
Counsel cited his intention to appeal Parris’s sentence in the notice of appeal but
did not identify the sentence as an issue in his Anders brief. To ensure that we have
conducted “a full examination of all the proceedings” before deciding that there are no non-
frivolous issues to raise on appeal, we will review the procedural and substantive
reasonableness of Parris’s sentence.6 Anders, 386 U.S. at 744; see also United States v.
Lessner, 498 F.3d 185, 203 (3d Cir. 2007). If the District Court’s sentence is procedurally
sound, there are grounds for appellate relief only if “no reasonable sentencing court would
have imposed the same sentence on that particular defendant for the reasons the [D]istrict
[C]ourt provided.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).
When imposing a sentence, a district court must first correctly calculate the
applicable Guidelines range, entertain any motions for downward departures, and then
consider each of the factors set forth in 18 U.S.C. § 3553(a). United States v. Levinson, 543
6
After discovering that the sentencing notes were not part of the record, this Court ordered
the parties to provide the transcript for the February 23, 2022 sentencing hearing. The
transcript was docketed on July 24, 2023 and reviewed by this Court.
6
F.3d 190, 194-95 (3d Cir. 2008). The District Court correctly calculated the Guidelines
range at seventy-eight to ninety-seven months imprisonment. After following the correct
procedural steps, the District Court imposed the statutory minimum term of five years
imprisonment. See 21 U.S.C. § 841(b)(1)(B)(ii). The District Court even sentenced below
the applicable sentencing guideline range, noting that, because of the COVID-19
pandemic, prison conditions were significantly harsher than “what could have been
conceived of when the guidelines were issued” and that Parris would “be better off if he
serve[d] less time.” Sentencing Tr., ECF No. 51, at 43:15 to 45:12. Viewing the record as
a whole, we find the sentence substantively reasonable.
Because the sentence is both procedurally and substantively reasonable, any
challenge on appeal would be frivolous.
III.
After reviewing the record in its entirety, we will dismiss the appeal and grant
counsel’s motion to withdraw.
7