United States v. Clark

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
6-9-2003
USA v. Clark
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3188
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 02-3188
___________
UNITED STATES OF AMERICA
v.
KASIMU CLARK
Appellant.
___________
On Appeal from the United States District Court
for the District of Delaware
(Crim. No. 1:02-CR-00002)
District Judge: The Honorable Sue L. Robinson
___________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 5, 2003
Before: BARRY and FUENTES, Circuit Judges and MCLAUGHLIN*, District Judge
(Opinion Filed: June 9, 2003)
* The Honorable Mary A. McLaughlin, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
________________________
OPINION OF THE COURT
________________________
FUENTES, Circuit Judge:
On March 28, 2002, Kasimu Clark entered a plea of guilty to one count of passing
counterfeit checks in violation of 18 U.S.C. §§ 2 and 513. On July 23, 2002, Clark was
sentenced to a term of imprisonment of 10 months and was ordered to make restitution in
the amount of $6,990 and to pay a special assessment of $100. Clark’s counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), expressing his belief that
Clark cannot raise any non-frivolous issues for our review, and directing us, as is required
under Anders, to the issues that he thought Clark might raise on appeal.
The parties adopted the findings and guideline calculations of the Presentence
Report. With a total offense level of 8 and a Criminal History Category of II, Clark’s
sentencing range was 4-10 months of incarceration. Clark’s counsel does not contend
that these calculations were wrong or that the 10 month sentence imposed by the district
court was illegal. The sole issue presented for our consideration is whether the district
court abused its discretion in denying Clark’s request to serve his sentence via the
substitute confinement alternative of home detention provided by U.S.S.G. §
5C1.1(c)(2).1
1
U.S.S.G. § 5C1.1(c)(2) provides, in pertinent part:
(c) If the applicable guideline range is in Zone B of the
Sentencing Table, the minimum term may be satisfied by –
(2) a sentence of imprisonment that includes a term of
supervised release with a condition that substitutes
community confinement or home detention according
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At the time of sentencing, Clark had served approximately 4 months of his
sentence because his incarceration commenced on April 1, 2002, when he reported to the
United States Marshal’s Service as he was ordered to after pleading guilty. Clark’s
counsel requested that the district court order that any portion of Clark’s sentence in
excess of the minimum guideline sentence of 4 months be served through home detention.
The district court ruled:
I have reviewed the presentence report carefully and under the
circumstances . . . we don’t have any record of the defendant
working since 1999 so I’m not exactly sure what he has been
doing over the past few years but it hasn’t been productive
from what I can tell. In any event, I respectfully decline to
adopt counsel’s recommendation and I am going to sentence .
. . the defendant to a term of 10 months which is within the
sentencing guideline.
Joint Appendix at A-26.
A defendant may appeal from a sentence imposed by the district court only if the
sentence (1) was imposed in violation of law, (2) was imposed as a result of an incorrect
application of the sentencing guidelines, (3) is greater than that specified in the applicable
guideline range, or (4) was imposed for an offense for which there is no sentencing
guideline and is plainly unreasonable. See 18 U.S.C. § 3742(a); United States v. Torres,
251 F.3d 138, 151 (3d Cir. 2001), cert. denied, 534 U.S. 936 (2001). Here, Clark does
to the schedule in subsection (e), provided that at least
one month is satisfied by imprisonment[.]
U.S.S.G. § 5C1.1(c)(2).
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not, and indeed cannot, raise any of the above bases for appealing his sentence. “We do
not have jurisdiction to review a sentencing court’s discretionary refusal to impose a
substitute detention under Guidelines section 5C1.1(c)(2).” United States v. Perakis, 937
F.2d 110, 111 (3d Cir. 1991).
After carefully reviewing the briefs and accompanying materials of record, we will
dismiss the appeal of the sentence imposed by the district court. Counsel conducted a
conscientious review of the record and concluded that there were no non-frivolous issues
that could be raised on appeal, as required by Anders, 386 U.S. at 744. We have
conducted an independent examination of the record before us, and we agree with counsel
that there are no non-frivolous issues that justify review. Because counsel has complied
with all of the procedures specified in Anders, we will grant his motion for withdrawal.
For the foregoing reasons, we conclude that we lack appellate jurisdiction over this
appeal and will dismiss it and grant counsel’s request to withdraw.
_____________________________
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
By the Court,
/S/ Judge Julio M. Fuentes
Circuit Judge
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