United States v. Wazir Roberts

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-26-2009
USA v. Wazir Roberts
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-4064
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"USA v. Wazir Roberts" (2009). 2009 Decisions. Paper 1120.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________________
No. 08-4064
___________________
UNITED STATES OF AMERICA
v.
WAZIR ROBERTS, AKA Waz,
Appellant
___________________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 2-08-cr-00433-001)
District Judge: Honorable Stanley R. Chesler
___________________
Submitted Under Third Circuit L.A.R. 34.1(a)
June 24, 2009
___________________
Before: BARRY and SMITH, Circuit Judges, and RESTANI,* Judge
(Opinion Filed: June 26, 2009)
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OPINION
___________________
*
Honorable Jane A. Restani, Chief Judge of the United States Court of
International Trade, sitting by designation.
RESTANI, Judge.
Appellant Wazir Roberts appeals his sentence for conspiracy to distribute and to
possess with intent to distribute heroin and cocaine. Appellant’s counsel filed a motion to
withdraw and a supporting brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Appellant has not filed a pro se brief. We will affirm the judgment of sentence and grant
counsel’s request to withdraw.
Appellant pled guilty, pursuant to a plea agreement, to conspiracy to distribute and to
possess with intent to distribute 100 grams or more of heroin and 500 grams or more of
cocaine. At sentencing, the Government and Appellant agreed that under the U.S.
Sentencing Guidelines (“Guidelines”), Appellant was a career offender subject to criminal
history category VI, with an offense level of 31, and that a sentence within the Guidelines
range was appropriate. The District Court sentenced Appellant to 188 months of
imprisonment, which was at the low end of the Guidelines range of 188 months to 235
months. Appellant appeals his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a).
Third Circuit Local Appellate Rule 109.2(a) states that “[w]here, upon review of the
district court record, counsel is persuaded that the appeal presents no issue of even arguable
merit, counsel may file a motion to withdraw and supporting brief pursuant to Anders.”
Third Circuit L.A.R. 109.2(a). This Court has a duty to ensure that counsel has “adequately
fulfilled the rule’s requirements,” and to conduct “an independent review of the record” to
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determine if any nonfrivolous issues exist. United States v. Youla, 241 F.3d 296, 300 (3d
Cir. 2001). The Court must be confident “that counsel has thoroughly examined the record
in search of appealable issues” and has “explain[ed] why the issues are frivolous.” Id.
Here, counsel states that a possible issue for appeal is whether the District Court
abused its discretion by not departing downward based on Appellant’s employment record,
family ties and responsibilities, and minor role in the offense. Counsel correctly concludes
that this argument lacks merit.
Initially, Appellant did not request a downward departure during sentencing, but
rather, agreed that a sentence within the Guidelines range resulting from the agreed
Guidelines offense level was reasonable. Further, the District Court adequately considered
the factors set forth in 18 U.S.C. § 3553(a), including Appellant’s criminal and employment
history and family ties, and concluded that a sentence at the low end of the Guidelines range
was proper. See United States v. Lessner, 498 F.3d 185, 203–04 (3d Cir. 2007) (upholding
a sentence where the district court adequately considered and applied the § 3553(a) factors
and declined to depart downward). In any event, this Court lacks jurisdiction to review a
district court’s discretionary decision not to depart downward. See United States v. Vargas,
477 F.3d 94, 103 (3d Cir. 2007).
Because counsel has met her obligations, and an independent review of the record
convinces the Court that there are no nonfrivolous issues for appeal, we will AFFIRM the
judgment of sentence of the District Court and GRANT counsel’s motion to withdraw.
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