United States v. Jones

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
11-8-2004
USA v. Jones
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4598
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-4598
UNITED STATES OF AMERICA
v.
DONALD JONES,
a/k/a HAFIZ SHABUR
Donald Jones,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. Crim. No. 02-cr-00244-1
District Judge: The Honorable Berle M. Schiller
Submitted Under Third Circuit LAR 34.1(a)
September 30, 2004
Before: ROTH, BARRY, and CHERTOFF, Circuit Judges
(Opinion Filed: November 8, 2004)
OPINION
BARRY, Circuit Judge
Donald Jones was charged with being a convicted felon in possession of a firearm
in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He pled guilty, and was sentenced to
180 months imprisonment and five years of supervised release.
Jones, pro se, appealed the judgment of sentence, and trial counsel was appointed
to represent Jones on appeal. After reviewing the record, counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), requesting permission to withdraw because he
was unable to discern any non-frivolous issues for review. Jones was subsequently
provided notice of his counsel’s desire to withdraw. He has not filed a pro se brief.
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We will grant counsel’s
motion to withdraw and will affirm the judgment of sentence.
I.
When counsel submits an Anders brief, we must perform a two part inquiry. First,
we must determine whether counsel has satisfied L.A.R. 109.2(a). United States v. Youla,
241 F.3d 296, 300 (3d Cir. 2001). To discharge his duty pursuant to L.A.R. 109.2(a),
counsel’s brief must “satisfy the court that counsel has thoroughly examined the record in
search of appealable issues” and “explain why the issues are frivolous.” Id. Although
counsel is not required to raise and reject every possible claim, he still must
conscientiously examine the record. Id.Second, we must be satisfied that our independent review of the record does not
reveal any non-frivolous issues. Id. If the Anders brief appears adequate on its face, “the
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proper course ‘is for the appellate court to be guided in reviewing the record by the
Anders brief itself.’” Id. at 301(quoting United States v. Wagner, 103 F.3d 551, 553 (7th
Cir. 1996)). We conclude that the Anders brief is adequate and, thus, it guides our
independent review of the record. See Youla, 241 F.3d at 301.
II.
As required by Anders, Jones’ counsel has highlighted portions of the record that
could putatively support an appeal. Counsel has identified two possible issues: (1) the
District Court’s refusal to continue the sentencing hearing in order to clarify Jones’
criminal record; and (2) the District Court’s decision to apply 18 U.S.C. § 924(e). After
reviewing the record, we agree with counsel that these issues are frivolous.
In his Anders brief, counsel explained that, prior to the sentencing hearing, he had
moved for a continuance in order to determine whether Jones had two or three felony
drug convictions. At the sentencing hearing, however, it became apparent that a
continuance was not necessary because counsel had been provided with certified copies
of Jones’ convictions, counsel and Jones had reviewed those records and stipulated to
them, and the Assistant U.S. Attorney answered to counsel’s satisfaction any questions
concerning those records. Any need to delay the sentencing was obviated, and the
District Court did not abuse its discretion when it denied the request for a continuance
that counsel had previously made.
Second, the District Court correctly applied 18 U.S.C. § 924(e). While Jones
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claimed that he only recalled two prior felony drug convictions, certified copies of three
such convictions were produced.
For the reasons stated above, we will grant counsel’s request to withdraw and will
affirm the judgment of sentence.
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