United States v. Gregory Lockwood

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-3287
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UNITED STATES OF AMERICA
v.
GREGORY A. LOCKWOOD,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 4:11-cr-00307)
District Judge: Honorable Yvette Kane
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Submitted Under Third Circuit LAR 34.1(a)
March 21, 2013
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Before: FUENTES, CHAGARES and BARRY, Circuit Judges
(Opinion Filed: May 2, 2013)
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OPINION
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BARRY, Circuit Judge
Gregory A. Lockwood appeals his conviction and 60-month sentence of
imprisonment for the possession of child pornography, in violation of 18 U.S.C. §
2252A(5)(B). His attorney has moved to withdraw under Anders v. California, 386 U.S.
738 (1967). For the following reasons, we will grant the motion to withdraw and affirm
the judgment of sentence.
I. 1
Under Anders v. California, 386 U.S. 738 (1967), appellate counsel may request
to withdraw from further representation of the defendant if he finds the appeal “to be
wholly frivolous.” Id. at 744. The request must be accompanied by a brief identifying
portions of the record that could potentially support an appeal. Id.In addressing counsel’s request, we undertake a twofold inquiry: (1) whether
counsel’s brief is adequate; and (2) whether an independent review of the record presents
any nonfrivolous issues. United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). With
respect to the first inquiry:
The duties of counsel when preparing an Anders brief are (1) to satisfy the
court that counsel has thoroughly examined the record in search of
appealable issues, and (2) to explain why the issues are frivolous. Counsel
need not raise and reject every possible claim. However, at a minimum, he
or she must meet the “conscientious examination” standard . . . .
Id. With respect to the second inquiry, we review the record to determine whether the
appeal “lacks any basis in law or fact.” McCoy v. Court of Appeals of Wisconsin, 486
U.S. 429, 438 n.10 (1988). The scope of this review is guided by the adequacy of the
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary review to
determine whether there are any nonfrivolous issues on appeal. Penson v. Ohio, 488 U.S.
75, 80 (1988).
2
Anders brief, determined by the first inquiry. Where an Anders brief is adequate, we
confine our scrutiny to those portions of the record identified by the Anders brief. See
Youla, 241 F.3d at 301. Where the Anders brief is inadequate, however, we broaden our
review to portions of the record implicated in the defendant’s pro se brief, or any other
filings that may provide “guidance concerning the issues [the defendant] wishes to raise
on appeal.” Id. Even if an Anders brief is inadequate, we may nonetheless affirm the
District Court without appointing new counsel if we find, after reviewing the record, that
the “frivolousness [of the appeal] is patent.” United States v. Coleman, 575 F.3d 316,
321 (3d Cir. 2009).
II.
Counsel’s Anders brief identifies three potential, but frivolous, issues for appeal:
(1) the jurisdiction of the District Court; (2) the validity of the guilty plea; and (3) the
legality of the 60-month sentence. 2 The brief is thorough and well-written, evidencing a
conscientious examination of the record and the potential issues on appeal. Counsel fully
explains why there are no nonfrivolous issues, and we have carefully examined those
2
In his pro se brief, Lockwood asserts but one claim: ineffective assistance of counsel.
Usually, this claim is made in a collateral proceeding, rather than on direct appeal.
United States v. Olfano, 503 F.3d 240, 246 (3d Cir. 2007) (citing United States v.
McLaughlin, 386 F.3d 547, 555 (3d Cir. 2004)). However, where the record is sufficient
to allow a determination of ineffective assistance, a separate hearing is unnecessary, and
we may address the claim on direct appeal. United States v. Headley, 923 F.2d 1079,
1083 (3d Cir. 1991). The record is sufficient to address this claim, and we find it is
patently without merit. There is simply no evidence that the choice of psychologist
prejudiced Lockwood in any way.
3
portions of the record identified by counsel as potentially nonfrivolous. Our independent
review convinces us that none of these issues could possibly support an appeal, and we
are satisfied that all the requirements of Anders have been met.
III.
We will grant counsel’s motion to withdraw and affirm the judgment of the
District Court.
4