United States v. Dawud Rogers

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-2973
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UNITED STATES OF AMERICA
v.
DAWUD ROGERS,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. No. 4-17-cr-00048-001)
District Judge: Hon. Matthew W. Brann
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
October 3, 2019
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Before: SHWARTZ, SCIRICA, and FUENTES, Circuit Judges.
(Filed: November 22, 2019)
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OPINION*
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SHWARTZ, Circuit Judge.
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
Dawud Rogers pled guilty to distribution and possession with intent to distribute
heroin and was sentenced to 120 months’ imprisonment. Rogers appeals. Rogers’
counsel argues that his appeal presents no nonfrivolous issues and moves to withdraw
under Anders v. California, 386 U.S. 738, 744 (1967). We will grant the motion and
affirm.
I
Rogers was charged with and pled guilty to distribution and possession with intent
to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). Thereafter, the Probation
Office prepared a Presentence Investigation Report (“PSR”) recommending a Sentencing
Guidelines range of 188 to 235 months’ imprisonment, based on a total offense level of
31 and criminal history category of VI. Rogers filed motions for variance and departure
and chiefly objected to the PSR’s conclusion that his prior felony convictions for
controlled substance offenses under Pennsylvania law triggered a career offender
designation.1 Before his sentencing, we rejected this argument. United States v. Glass,
904 F.3d 319, 321 (3d Cir. 2018), cert. denied, 139 S. Ct. 840 (2019).
At the sentencing hearing, Rogers attempted to preserve the issue in the event we
revisited Glass en banc or the Supreme Court granted certiorari. Concluding that Glass
was binding precedent that directly addressed the issue, the District Court overruled
Rogers’ objection to his designation as a career offender. The Court accordingly adopted
1
Specifically, Rogers was convicted in 2001 and 2010 of possession with intent to
deliver a controlled substance and delivery of a controlled substance, respectively, under
35 Pa. Cons. Stat. § 780-113(a)(30).
2
the PSR’s findings and recommended Guidelines range. The Court next addressed
Rogers’ motion for a departure based on his claimed overrepresented criminal history.
The Court denied the motion, concluding that Rogers’ criminal history category did not
substantially overrepresent his criminal history or the likelihood that he would commit
other crimes. The Court then considered factors under 18 U.S.C. § 3553(a), varied below
the Guidelines range, and imposed a sentence of 120 months’ imprisonment, a fine of
$1,100, and six years’ supervised release.
Rogers’ counsel filed an appeal and a motion to withdraw, asserting that there are
no nonfrivolous grounds for appeal.2
II3
Under Anders, 386 U.S. at 744, a lawyer representing an indigent criminal
defendant may withdraw from a case on appeal “when the indigent criminal defendant he
represents wishes to pursue frivolous arguments.” United States v. Youla, 241 F.3d 296,
299 (3d Cir. 2001). “Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines
the Supreme Court promulgated in Anders to assure that indigent clients receive adequate
and fair representation.” Id. at 300. This rule allows defense counsel to file a motion to
withdraw and an accompanying brief pursuant to Anders when counsel has reviewed the
2
Rogers was informed that he could file a pro se brief in support of his appeal but
has not done so.
3
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Because Rogers did not object to the validity of his guilty plea or the reasonableness of
his sentence (aside from the career offender designation), our review is for plain error.
See United States v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc); United
States v. Goodson, 544 F.3d 529, 539 (3d Cir. 2008).
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record and concludes that “the appeal presents no issue of even arguable merit.” 3d Cir.
L.A.R. 109.2(a).
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 (citing United States v.
Marvin, 211 F.3d 778, 780 (3d Cir. 2000)). Under the first inquiry, an Anders brief must
(a) show that counsel has thoroughly examined the record in search of appealable issues,
identifying those that arguably support the appeal, and (b) explain why the issues are
frivolous. Marvin, 211 F.3d at 779-81. A frivolous issue “lacks any basis in law or fact.”
McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 438 n.10 (1988); accord
Youla, 241 F.3d at 301 (“An appeal on a matter of law is frivolous where [none] of the
legal points [are] arguable on their merits.”) (alterations in original) (internal quotation
marks and citations omitted). If these requirements are met, we then conduct an
independent review of the record. The Anders brief guides our review, and we need not
scour the record in search of nonfrivolous issues. See Youla, 241 F.3d at 300-01.
A
Counsel’s brief fulfills the requirements of Local Rule 109.2(a). Counsel has
identified and discussed the only three issues a defendant who has entered an
unconditional guilty plea (as here) may raise on appeal: (1) whether the district court had
jurisdiction, (2) whether the guilty plea was entered knowingly and voluntarily, and (3)
whether the sentence imposed was both procedurally and substantively reasonable. See
United States v. Broce, 488 U.S. 563, 569 (1989). Counsel also explained why there are
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no nonfrivolous issues on these subjects. Accordingly, counsel’s brief is adequate under
Anders, and we therefore review whether the issues identified are frivolous.
B
We conclude there are no nonfrivolous issues. First, the District Court has
jurisdiction.4 Rogers was charged with a federal offense, namely distribution and
possession with intent to distribute heroin under 21 U.S.C. § 841(a)(1). Federal district
courts have jurisdiction over federal offenses pursuant to 18 U.S.C. § 3231, and, as such,
any jurisdictional argument would be frivolous.
Second, the plea colloquy shows that Rogers’ guilty plea was valid under the
Constitution and Federal Rule of Criminal Procedure 11.5 During the plea hearing, the
District Court ensured that Rogers was competent, notified of the charges, and advised of
his constitutional rights, including that he could plead not guilty and proceed to trial with
4
Our review of jurisdictional issues is plenary. United States v. Williams, 369
F.3d 250, 252 (3d Cir. 2004).
5
When a defendant enters a guilty plea, he waives various constitutional rights,
and those rights must be specifically addressed during a plea hearing. Boykin v.
Alabama, 395 U.S. 238, 242-44 (1969). Accordingly, Rule 11 requires that a district
court advise the defendant of, among other things,
the waiver of certain constitutional rights by virtue of a guilty plea, the nature
of the charges to which he or she is pleading guilty, the maximum possible
penalty to which he or she is exposed, the court’s obligation to apply the
Sentencing Guidelines and discretion to depart from those Guidelines under
some circumstances, and the terms of any plea-agreement provision waiving
the right to appeal or to collaterally attack the sentence.
United States v. Schweitzer, 454 F.3d 197, 202-03 (3d Cir. 2006) (internal quotation
marks, citations, and alterations omitted). The district court must also “ensure that the
defendant receives these caveats, understands them, and still wishes of his or her own
volition to plead guilty.” Id. at 203.
5
the assistance of counsel who could cross-examine witnesses, that he had a right to testify
or not testify and subpoena witnesses, and that the jury would presume him innocent,
unless and until the Government proved his guilt beyond a reasonable doubt. The Court
also informed Rogers of the maximum penalties he faced and explained that, in its
sentence, it would consider but could depart from the Guidelines. Finally, the Court
found that there was a factual basis for Rogers’ guilty plea, it was knowing and
voluntary, and he understood his rights and the consequences of his plea. Therefore,
there are no issues of arguable merit with respect to Rogers’ plea.
Third, Rogers’ sentence was both procedurally and substantively reasonable. See
United States v. Tomko, 562 F.3d 558, 566 (3d Cir. 2009) (en banc). With respect to
procedural reasonableness, a district court must (1) calculate the applicable Guidelines
range, (2) consider any departure motions, and (3) meaningfully consider all relevant 18
U.S.C. § 3553(a) factors, including any variance requests. United States v. Merced, 603
F.3d 203, 215 (3d Cir. 2010). “If a district court’s procedure passes muster, ‘we
then . . . consider [a sentence’s] substantive reasonableness.’” Tomko, 562 F.3d at 567(quoting United States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008)). 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.” Id.
at 568.
As to the applicable Guidelines range, Rogers challenged the Court’s use of his
prior Pennsylvania drug convictions as predicates for a career offender designation,
U.S.S.G. § 4B1.1. “[A] defendant qualifies for a career-offender enhancement under the
6
Guidelines if he . . . ‘has at least two prior felony convictions of . . . a controlled
substance offense.’” Glass, 904 F.3d at 321 (quoting U.S.S.G. § 4B1.1(a)). “A state
conviction cannot qualify as a ‘controlled substance offense’ if its elements are broader
than those listed in § 4B1.2(b).” Id. (quoting Mathis v. United States, 136 S. Ct. 2243,
2251 (2016)). In Glass, we held that the Pennsylvania drug statute’s elements are not
broader than those in § 4B1.2(b). Id. at 322-23. Thus, the District Court correctly found
that Rogers’ Pennsylvania drug convictions triggered application of the career offender
provision, and any claim they did not would be frivolous.
The District Court also gave “rational and meaningful” consideration to the
§ 3553(a) factors—including Rogers’ background, persistent drug abuse, considerable
criminal history, and the need for just punishment, deterrence, and rehabilitation, see
Tomko, 562 F.3d at 568 (quoting United States v. Grier, 475 F.3d 556, 571 (3d Cir.
2007) (en banc)), and granted Rogers’ variance motion, imposing a below-Guidelines
sentence. Thus, the Court’s sentence was procedurally reasonable.6
The sentence was also substantively reasonable. Based on Rogers’ criminal
record, including the fact that he committed multiple drug offenses, the nature of his
6
At sentencing, Rogers also objected to the relevance of certain information the
Government proffered concerning Rogers’ role in supplying heroin that resulted in the
death of the purchaser. There is no nonfrivolous issue concerning the presentation of this
evidence, especially since it appears that the District Court did not consider the incident
in its application of the § 3553 factors and its imposition of a below-Guidelines sentence
where the Government offered this evidence to support its request for a sentence at the
high end of the range. Because the Court did not rely on this evidence, allowing its
presentation could not be plain error, see United States v. Ferguson, 876 F.3d 512, 514-
15 (3d Cir. 2017), and any complaint about it would have been frivolous.
7
offense, and his drug history, we cannot say that “no reasonable sentencing court would
have imposed” the below-Guidelines sentence of 120 months’ imprisonment that the
District Court ordered here. Id.III
For the foregoing reasons, we will grant counsel’s motion to withdraw and affirm.
8