United States v. Alan Garrett

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 12-1338
____________
UNITED STATES OF AMERICA
v.
ALAN D. GARRETT, a/k/a ALLEN GARRETT
a/k/a ALLAN GARRETT a/k/a TYRONE GARRETT
a/k/a TYREE GARRETT a/k/a TYRELL GARRETT
Alan D. Garrett,
Appellant
___________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 1-11-cr-00242-001)
District Judge: Honorable Jerome B. Simandle
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 28, 2012
Before: McKEE, Chief Judge, JORDAN AND VANASKIE, Circuit Judges
(Filed: December 5, 2012)
___________
OPINION
___________
VANASKIE, Circuit Judge.
Alan Garrett pled guilty to the charge of being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). His appeal is before us on a brief filed by his
attorney pursuant to Anders v. California, 386 U.S. 738 (1967). Counsel for Garrett
asserts that there are no nonfrivolous issues on appeal. We agree. Accordingly, we will
affirm the District Court‟s judgment and grant counsel‟s motion for leave to withdraw.
I.
We write primarily for the parties, who are familiar with the facts and procedural
history of this case. Accordingly, we set forth only those facts necessary to our analysis.
On August 20, 2010, at approximately 10:45 PM, police officers, responding to a
radio call for shots fired, observed Garrett leaning on a fence in front of a residence and
attempting to walk away in a staggered, unsteady manner. The officers ordered Garrett to
stop, but he did not comply. The officers pursued Garrett as he attempted to flee. As
police tackled him to the ground, Garrett removed a loaded handgun from his waistband.
Garrett had been previously convicted of a felony.
On April 13, 2011, in a single-count indictment, the government accused Garrett
of possessing a firearm as a convicted felon. On September 21, 2011, Garrett entered
into a plea agreement with the government. On January 26, 2012, Garrett was sentenced
to 77 months‟ incarceration, the bottom of the advisory guidelines range.
This appeal ensued. The District Court had jurisdiction under 18 U.S.C. § 3231,
and we have appellate jurisdiction under 28 U.S.C. § 1291.
II.
A.
2
Pursuant to Anders, counsel for a defendant may seek to withdraw if, after
reviewing the District Court record, he or she is “persuaded that the appeal presents no
issue of even arguable merit.” See 3d Cir. L.A.R. 109.2(a). Specifically, counsel must
“(1) satisfy the court that counsel has thoroughly examined the record in search of
appealable issues, and (2) . . . explain why the issues are frivolous.” United States v.
Youla, 241 F.3d 296, 300 (3d Cir. 2001) (citations omitted). Although not every
conceivable claim need be raised and rejected, counsel “must meet the „conscientious
examination‟ standard set forth in Anders.” Id. When presented with an Anders brief, we
engage in a two-step analysis to consider: “(1) whether counsel adequately fulfilled
[Third Circuit Local Appellate Rule 109.2(a)'s] requirements; and (2) whether an
independent review of the record presents any nonfrivolous issues.” Id. If we find that
“the Anders brief initially appears adequate on its face,” the second step of the inquiry
will be “confine[d] . . . to those portions of the record identified by . . . [the] Anders
brief.” Id. at 301. If this Court agrees with counsel‟s assessment of the appealable
issues, we “will grant counsel‟s Anders motion and dispose of the appeal without
appointing new counsel.” Id. at 300. When reviewing an Anders motion, we exercise
plenary review. See Simon v. Gov’t of Virgin Islands, 679 F.3d 109, 114 (3d Cir. 2012).
Garrett‟s counsel identifies one potentially appealable issue: whether Garrett‟s
criminal history category was improperly calculated. In untimely pro se filings, Garrett
has presented some additional arguments in support of his appeal.1
1
On April 30, 2012, Garrett caused to be filed a document in support of his
appeal, simply stating that he was adding to his “pro se argument” our non-precedential
3
We are satisfied that Garrett‟s counsel has conducted an adequate examination of
the record and adequately explained that there are no nonfrivolous issues for appeal. See
Youla, 241 F.3d at 300. Therefore, we conclude that the Anders brief is adequate.
“Where the Anders brief initially appears adequate on its face, the proper course „is for
the appellate court to be guided in reviewing the record by the Anders brief itself,‟” as
well as the contentions asserted in a defendant‟s pro se brief. Id. at 301 (quoting Marvin,
211 F.3d at 553). We will consider first the issue presented in the Anders brief, and then
turn to the questions raised by Garrett himself.
B.
The District Court found that Garrett‟s Criminal History Category points totaled
nineteen, producing a Criminal History Category of VI. At sentencing, Garrett requested
that counsel object to the calculation of his criminal history points. Counsel did so, but
later withdrew that objection after concluding that the criminal history points were
correctly calculated. The Anders brief questions the inclusion of three of Garrett‟s prior
convictions in his criminal history category and whether five prior convictions should
have been grouped as two separate single sentences. Garrett‟s counsel concludes that the
issues pertaining to the criminal history scoring are frivolous.
opinion in United States v. Ishmail, 169 F. App‟x. 114 (3d Cir. 2006). By letter dated
May 1, 2012, the Clerk of Court directed Garrett to notify the Court in writing within
seven days if he intended this document to serve as his pro se brief. Garrett did not
respond to the Clerk‟s directive. Accordingly, his pro se submission was not treated as a
brief in support of his appeal. On July 6 and 9, 2012, however, Garrett filed documents
labeled as “Argument in Support of Appeal” and “Amended Argument in Support of
Appeal.” On August 20, 2012, Garrett filed a document treated on the record as a Rule
28(j) letter. These pro se submissions will be considered to be Garrett‟s additional
arguments in support of his appeal.
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1.
United States Sentencing Guidelines (“U.S.S.G”) § 4A1.2(e) provides:
(1)Any prior sentence of imprisonment exceeding one year
and one month that was imposed within fifteen years of the
defendant‟s commencement of the instant offense is counted
[in the criminal history category]. Also counted are any prior
sentences of imprisonment exceeding one year and one
month, whenever imposed, that resulted in the defendant
being incarcerated during any part of such fifteen-year period.
(2) Any other prior sentence that was imposed within ten
years of the defendant‟s commencement of the instant offense
is counted.
Garrett was arrested for possessing a firearm as a convicted felon on August 20,
2010. Three of Garrett‟s prior arrests occurred before August 20, 1995, fifteen years
from the date of the current offense. Specifically, the arrests occurred on April 13, 1993,
June 13, 1994, and February 6, 1995. Garrett, however, was not sentenced on these
charges until February 8, 1996. Furthermore, Garrett was sentenced in excess of the
required one year and one month for each of the three offenses, qualifying them for use
under § 4A2.1(e)(1). Garrett ultimately served 3 years‟ imprisonment for his arrest in
April of 1993, due to a probation violation, and was sentenced to 5 years‟ incarceration
and 18 years‟ incarceration respectively for his arrest in June of 1994 and February of
1995. Therefore, because the sentences were imposed within the 15 year limitation under
§ 4A1.2(e)(1) and exceeded the required one year and one month minimum sentence,
they were properly considered by the court in calculating Garrett‟s Criminal History
Score. See, e.g., United States v. Baltas, 236 F.3d 27, 39 (1st Cir. 2001) (prior sentence
properly counted because defendant in prison within 15 year period); United States v.
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Love, 134 F.3d 595, 608 (4th Cir. 1998) (prior sentences properly counted because
defendant serving time for prior convictions within 15 years of commission of charged
offense); United States v. Ybarra, 70 F.3d 362, 366 (5th Cir. 1995) (criminal history
correctly included 2 felony convictions for which defendant was released from custody
over 15 years ago because defendant serving sentence on those convictions within 15
years of commission of charged offense). See also United States v. Salmon, 94 F.2d 1106,
1128 (3d Cir. 1991) (despite Washington originally receiving a suspended sentence
which would preclude counting the conviction, he later served a term of imprisonment
due to a probation violation, thus permitting the district court to consider the sentence in
calculating criminal history points).
2.
U.S.S.G. Section 4A1.2(a)(2) provides:
If the defendant has multiple prior sentences, determine
whether those sentences are counted separately or as a single
sentence. Prior sentences always are counted separately if the
sentences were imposed for offenses that were separated by
an intervening arrest (i.e., the defendant is arrested for the
first offense prior to committing the second offense). If there
is no intervening arrest, prior sentences are counted separately
unless (A) the sentences resulted from offenses contained in
the same charging instrument; or (B) the sentences were
imposed on the same day. Count any prior sentence covered
by (A) or (B) as a single sentence.
The Guidelines specifically mandate that offenses separated by an intervening arrest are
to be considered separately when calculating a defendant‟s criminal history score. See
U.S.S.G. § 4A1.2(2) cmt. 2. Here, Garrett was arrested on April 13, 1993, June 13, 1994,
and February 6, 1995, but was sentenced on all three charges on the same day, and the
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sentences ran concurrently. Similarly, Garrett was arrested on December 26, 2006 and
June 5, 2007, but was sentenced on both charges on the same day, and the sentences ran
concurrently. On every occasion, Garrett was arrested on the prior charge before the
commission of the second offense. The fact that the sentences for the separate offenses
were imposed on the same date and that the sentences ran concurrently is irrelevant.
Therefore, the District Court properly concluded that Garrett‟s convictions counted
separately. Accordingly there was no error in the computation of Garrett‟s Criminal
History Score.
B.
In three untimely submissions, treated as Garrett‟s pro se brief, Garrett raises three
issues for appeal. Garrett contends that his sentence under the plea agreement exceeded
the statutory maximum, and that several prior convictions should not have been counted
as felonies.
1.
Garrett contends that his sentence exceeds the statutory maximum for the offense
to which he pled guilty. Garrett argues that a defendant sentenced for violation of § 922
shall not be imprisoned for more than five years . In support of his argument, Garrett
cites 18 U.S.C. § 924(a)(1).
18 U.S.C. § 924 reads in relevant part:
(a)(1) Except as otherwise provided in this subsection,
subsection (b), (c), (f), or (p) of this section, or in section 929,
whoever--
(A) knowingly makes any false statement or representation
with respect to the information required by this chapter to be
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kept in the records of a person licensed under this chapter or
in applying for any license or exemption or relief from
disability under the provisions of this chapter;
(B) knowingly violates subsection (a)(4), (f), (k), or (q) of
section 922;
(C) knowingly imports or brings into the United States or any
possession thereof any firearm or ammunition in violation of
section 922(l); or
(D) willfully violates any other provision of this chapter,
shall be fined under this title, imprisoned not more than five
years, or both.
(2) Whoever knowingly violates subsection (a)(6), (d), (g),
(h), (i), (j), or (o) of section 922 shall be fined as provided in
this title, imprisoned not more than 10 years, or both.
18 U.S.C. § 924(a).
Garrett pled guilty to the charge of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). Section (a)(1) applies to the violation of subsections
(a)(4), (f), (k), and (q) of § 922. Section (a)(2) applies to the violation of subsections
(a)(6), (d), (g), (h), (i), (j), and (o) of § 922. Therefore, the subsection applicable to
Garrett‟s offense is (a)(2), not (a)(1) as Garrett contends. Section (a)(2) permits
imprisonment of up to 10 years for a violation of § 922(g). Garrett was sentenced to six
years and five months‟ imprisonment. Therefore, he was not sentenced in excess of the
statutory maximum.2
2.
Next, Garrett contends only sentences imposed within ten years of the
commencement of the instant offense are to be considered in calculating the Criminal
2
Garrett also cites 18 U.S.C. § 924 (c)(1)(A) in support of his argument. Section
924(a)(1)(A) is only applicable to crimes of violence and drug trafficking offenses.
Garrett was not charged with a crime of violence. Therefore, this section is inapplicable.
8
History Score. Garrett argues that three of his offenses fall outside the ten-year window,
and thus were incorrectly considered by the District Court.
The current offense was committed on August 20, 2010. Garrett has eight prior
convictions, seven of which were included in calculating his Criminal History Score. On
October 15, 1993, Garrett was convicted of unlawful possession of a weapon (handgun).
He was originally sentenced to 1 year probation, but due to a probation violation on
February 8, 1996, Garrett was resentenced to three years‟ imprisonment. On the same
date, Garrett was sentenced for a second unlawful possession of a weapon (firearm)
charge and criminal attempt to commit murder. Garrett was sentenced to 5 years‟
imprisonment and 18 years‟ imprisonment respectively. On September 3, 2002, Garrett
was convicted of escape from detention and sentenced to four years‟ imprisonment. On
December 6, 2003, Garrett was convicted of hindering apprehension and sentenced to
two days‟ imprisonment.3 On October 16, 2007, Garrett was convicted of burglary and
sentenced to 3 years‟ imprisonment. On October 26, 2007, Garrett was convicted of
possession of a controlled substance with intent to distribute within 1,000 feet of a school
and sentenced to three years‟ imprisonment. On August 23, 2010, Garret was convicted
of prowling in a public place, and sentenced to 30 days‟ imprisonment.4
As pointed out above, a sentence imposed within fifteen years of the commission
of the offense under consideration is counted if, inter alia, the sentence exceeded one
3
Although this conviction falls within the ten year statutory time period, zero
criminal history points were associated with this offense. Therefore, it had no impact on
Garrett‟s final criminal history score.
4
This last conviction was given one criminal history point. The other six
convictions that were counted were assigned three points.
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year and one month. Garrett was sentenced to prison terms exceeding one year and one
month for three separate offenses more than ten but less than fifteen years ago, and these
sentences were properly considered in calculating his criminal history score. His
convictions for which sentences were imposed within ten years of the commission of the
instant offense also were properly counted. Accordingly, Garrett‟s contention is
frivolous.
3.
Last, Garrett argues that two of his prior convictions were incorrectly considered
felonies and therefore should not have been considered in the calculation of his Criminal
History Score because they fall outside of the non-felony ten-year window. Specifically,
Garrett contends that neither of his unlawful possession of a weapon charges should have
been considered.
Garrett has two prior convictions for unlawful possession of a weapon. Garrett
received a sentence of three years‟ imprisonment for the first offense, and five years‟
imprisonment for the second. 5 U.S.S.G. § 4A1.2(e)(1) requires inclusion of offenses
resulting in a sentence of more than one year and one month for which the sentence was
imposed within fifteen years of commission of the instant offense. And U.S.S.G. §
4A1.1(a) assigns three points to each sentence exceeding one year and one month.
Therefore, because both offenses resulted in sentences well in excess of the required one
5
The first offense originally resulted in a sentence of one year probation. Garrett
violated that probation and was resentenced to three years‟ imprisonment.
10
year and one month, they were thus properly considered in calculating Garrett‟s Criminal
History Score.
III.
Counsel adequately fulfilled the requirements of Anders. Our independent review
of the record does not disclose any nonfrivolous grounds for appeal. For the foregoing
reasons, we will affirm the judgment of the District Court and grant defense counsel‟s
motion to withdraw.
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