United States v. Howard

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-20-2005
USA v. Howard
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3163
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 04-3163
UNITED STATES OF AMERICA
v.
STEVEN HOWARD,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 03-cr-00499
District Judge: The Honorable Petrese B. Tucker
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 16, 2005
Before: SLOVITER, SMITH, and VAN ANTWERPEN, Circuit Judges
(Filed: December 20, 2005)
OPINION OF THE COURT
SMITH, Circuit Judge.
Steven Howard was indicted and charged with two counts of armed bank robbery
in violation of 18 U.S.C. § 2113(d) and two counts of using a firearm during a crime of
violence in violation of 18 U.S.C. § 924(c). Howard agreed to plead guilty to all four
counts. The written plea agreement stated that he “voluntarily and expressly waive[d] all
rights to appeal” his conviction, his sentence, or any other matter relating to his
prosecution unless the government appealed his sentence, his sentence exceeded the
statutory maximum, or the sentencing judge erred by departing upward from the United
States Sentencing Guidelines. During the plea colloquy, the District Judge asked if
Howard had agreed to “waive or give up your right to appeal.” He answered that he did.
In response to the District Judge’s inquiry as to whether he understood that aspect of the
plea agreement, Howard replied in the affirmative. Howard also affirmed that he
understood the limited exceptions to his waiver. Thereafter, the District Court sentenced
Howard to 420 months of imprisonment.1
After filing a timely notice of appeal, Howard’s counsel moved to withdraw
pursuant to Anders v. California, 386 U.S. 738 (1967).2 In Anders, the Supreme Court
held that the “constitutional requirement of substantial equality and fair process”
necessitates that appellant’s counsel vigorously act as an advocate for the defendant. 386
U.S. at 744. Thus, counsel’s
role as advocate requires that he support his client’s appeal to the best of his
ability. Of course, if counsel finds his case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request
permission to withdraw. That request, must, however, be accompanied by a
brief referring to anything in the record that might arguably support the
appeal.
Id. In United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001), we reiterated that an
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise appellate
jurisdiction under 28 U.S.C. §1291 and 18 U.S.C. § 3742(a).
2
Although Howard had the opportunity to file an informal brief pursuant to Third
Circuit L.A.R. 109.2(a), he did not take advantage of that opportunity.
2
Anders brief must demonstrate that counsel has “thoroughly examined the record in
search of appealable issues,” and it must “explain why the issues are frivolous.”
Here, counsel correctly asserted in his Anders brief that because Howard pleaded
guilty, he is limited to asserting a constitutional right not to be haled into court on a
charge, challenging the validity of the guilty plea, and attacking the legality of his
sentence. See United States v. Broce, 488 U.S. 563, 574-76 (1989); 18 U.S.C. § 3742(a);
Tollett v. Henderson, 411 U.S. 258, 267 (1973). Counsel explained, with citations to the
record, why none of these issues had merit.
In response to the notice of appeal, the government moved to enforce Howard’s
appellate waiver by dismissing the appeal. We declared in United States v. Khattak, 273
F.3d 557, 562 (3d Cir. 2001), that “waivers of appeals, if entered into knowingly and
voluntarily, are valid.” We recognized, however, that some waivers may be invalidated if
there is an error amounting to a miscarriage of justice. In determining whether an error
warrants invalidating an appellate waiver, we observed that consideration should be given
to the alleged error, its gravity, its character, the impact of the error on the parties, and the
extent to which the defendant acquiesced in the result. Id. at 563 (quoting United States
v. Teeter, 257 F.3d 14, 25 (1st Cir. 2001)). In addition, we emphasized the importance of
the district court’s inquiry into whether the defendant understood the waiver and how it
affected him. Khattak, 273 F.3d at 563.
As we noted above, the sentencing judge fulfilled her responsibility of verifying
that Howard understood the appellate waiver and the limits it imposed. Our review of
3
Howard’s plea colloquy failed to reveal any indicia that either his plea or his waiver was
involuntary or unknowing. In light of counsel’s Anders brief, which explains at length
why there is no basis for appeal, we find no reason to set aside Howard’s appellate
waiver. Accordingly, we will grant the government’s motion to enforce the appellate
waiver and to dismiss this appeal. We will also grant counsel’s motion to withdraw. We
further certify that the issues presented in this appeal lack legal merit and thus do not
require the filing of a petition for writ of certiorari with the Supreme Court. 3d Cir.
L.A.R 109.2(b).
4