United States v. Taibika Dawson

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-16-2009
USA v. Taibika Dawson
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2155
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"USA v. Taibika Dawson" (2009). 2009 Decisions. Paper 1529.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2155
UNITED STATES OF AMERICA
v.
TAIBIKA DAWSON,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 07-cr-00316-1)
District Judge: Honorable Joel A. Pisano
Submitted Under Third Circuit LAR 34.1(a)
March 26, 2009
Before: RENDELL, AMBRO and JORDAN, Circuit Judges
(Filed: April 16, 2009)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Taibika Dawson appeals the entry of a guilty verdict against him in the District
Court for the District of New Jersey for possession of a firearm by a convicted felon in
violation of 18 U.S.C. §§ 922(g)(1)-(2). Dawson’s counsel moved to withdraw pursuant
to Anders v. California, 386 U.S. 738 (1967). Because we find no non-frivolous
arguments in support of Dawson’s appeal, we will affirm.
As we write for the benefit of the parties, we only briefly summarize the essential
facts. In 2006, Trenton police officers on patrol observed a group loitering in the front
yard of a residence. Upon shining a light on the group, they observed Dawson holding a
black handgun at his side. Dawson ran toward the front door of the residence while
attempting to conceal the gun, and disobeyed police orders to stop and show his hands.
The officers saw Dawson toss something into the residence. After a struggle, Dawson
was arrested and a firearm was confiscated from his person. Police subsequently
recovered a second firearm found in plain view inside the doorway. After a jury trial,
Dawson was convicted of possession of a firearm by a previously convicted felon, and
was sentenced within the applicable U.S. Sentencing Guidelines range. We construe
Dawson’s pro se arguments on appeal as challenges to the sufficiency of the evidence to
convict him and the adequacy of his appointed counsel.
We have jurisdiction under 28 U.S.C. § 1291. United States v. Tannis, 942 F.2d
196, 197 (3d. Cir. 1991). Under Anders, if court-appointed “counsel finds his case to be
wholly frivolous, after a conscientious examination of it,” he may request permission to
withdraw accompanied by a brief alerting the court to “anything in the record that might
arguably support the appeal.” Anders, 386 U.S. at 744; United States v. Youla, 241 F.3d
296, 299 (3d Cir. 2001). In assessing an Anders brief, we must determine: 1) whether
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counsel has thoroughly examined the record for appealable issues and has explained why
any such issues are frivolous; and 2) “whether an independent review of the record
presents any non-frivolous issues.” Youla, 241 F.3d at 300. If the Anders brief appears
adequate on its face, we will confine our scrutiny to the portions of the record identified
in Appellant’s pro se brief and Counsel’s Anders brief. Id. at 301.
In his brief, Counsel reviews what he characterizes as a “straightforward and
simple” case, in which the Government produced three police officer witnesses, each of
whom testified to seeing Dawson in possession of a firearm. (Anders Br. at 6.) Counsel
relates that the defense’s effort to suppress firearm evidence prior to trial failed when
witnesses the defense expected to contradict the Government’s witnesses failed to appear.
Counsel also asserts that there can be no arguments relating to admission of evidence at
trial because Dawson succeeded in the only significant ruling when the Court agreed to
keep out evidence of drugs and money at the scene. As for sentencing, Counsel notes that
the District Court rejected a four-level upward adjustment recommended in the Pre-
Sentence Report, and sentenced Dawson at the very bottom of the resulting guideline
range. Upon reviewing the proceedings from start to finish, Counsel concluded that
there were no non-frivolous avenues for appeal. We conclude that Counsel’s Anders
brief is adequate on its face, and our examination of the record relating to the proceedings
described by Counsel reveals no non-frivolous arguments. We therefore limit further
inquiry to the issues raised by Dawson pro se.
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Two additional arguments are made by Dawson in his pro se brief: that the
Government’s police officer witnesses lacked credibility, and that Dawson received
ineffective assistance of counsel in violation of the Sixth Amendment. With regard to the
credibility of witnesses on appeal, we do not “usurp the role of the jury by weighing
credibility and assigning weight to the evidence,” United States v. Wise, 515 F.3d 207,
214 (3d Cir. 2008). The Government presented three witnesses testifying that Dawson
was in possession of a firearm and it was for the jury to decide whether to credit this
testimony. This argument accordingly lacks merit. As for the alleged ineffective
assistance of counsel, we “generally do[] not review Sixth Amendment ineffective
assistance of counsel claims on direct appeal.” United States v. Olfano, 503 F.3d 240, 246
(3d Cir. 2007). There is no reason here to depart from this general rule.
We find no non-frivolous arguments in support of Dawson’s appeal. Counsel is
under no obligation to file a petition for writ of certiorari in the United States Supreme
Court. See Third Circuit L.A.R. 109.2(b). We will affirm the judgment of the District
Court and, in a separate order, grant Counsel’s motion to withdraw.
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