Document Info

DocketNumber: 10-2735

Judges: Rendell, Jordan, Barry

Filed Date: 9/16/2011

Status: Non-Precedential

Modified Date: 11/5/2024

  •                                                    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 10-2735
    _____________
    UNITED STATES OF AMERICA
    v.
    DAVID TUCKER,
    Appellant
    _______________
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. No. 08-cr-00756-001)
    District Judge: Hon. Stewart Dalzell
    _______________
    Submitted Under Third Circuit LAR 34.1(a)
    September 15, 2011
    Before: RENDELL, JORDAN and BARRY, Circuit Judges.
    (Filed: September 16, 2011)
    _______________
    OPINION OF THE COURT
    _______________
    JORDAN, Circuit Judge.
    David Tucker appeals the May 28, 2010 judgment of the United States District
    Court for the Eastern District of Pennsylvania sentencing him to 120 months‟
    imprisonment, 5 years‟ supervised release, $2,145 restitution, and $200 in special
    assessments for committing armed bank robbery, in violation of 
    18 U.S.C. § 2113
    (d), and
    for carrying and using a firearm during a crime of violence, in violation of 
    18 U.S.C. § 924
    (c)(1). Tucker‟s counsel has moved to withdraw pursuant to Anders v. California,
    
    386 U.S. 738
     (1967). For the reasons that follow, we will grant the motion to withdraw
    and affirm the District Court‟s judgment.
    I.     Background
    On October 14, 2008, Tucker entered a PNC Bank and approached the tellers,
    brandishing a revolver. While yelling threats and pointing the gun at the tellers, he slid a
    black plastic bag under the protective glass and demanded that they fill it with money. A
    teller filled the bag with approximately $2,145 and slid it back under the glass. Tucker
    took the bag and fled.
    A week later, two FBI agents arrested Tucker for the robbery. After waiving his
    Miranda rights, Tucker admitted to the agents that he had robbed the PNC Bank on
    October 14, 2008. He was later charged with the robbery and firearms offenses as
    recounted above.
    At a plea hearing on January 21, 2010, the District Court explained to Tucker the
    rights he would forfeit by pleading guilty and confirmed that he was entering his plea
    voluntarily. Tucker then pled guilty to both counts.
    At sentencing, the Court reviewed the Presentence Investigation Report (“PSR”),
    which, based on Tucker‟s conduct and background, calculated an offense level of 19 and
    a criminal history category of II. Those calculations resulted in a Guidelines range of 33
    2
    to 41 months‟ imprisonment for the armed robbery count, plus a mandatory consecutive
    term of 84 months for the firearms count. Tucker did not object to those calculations. He
    did, however, request a downward variance based on his post-offense cooperation and
    psychiatric history. The Court considered Tucker‟s mental condition and his ability to be
    rehabilitated but, due to the seriousness of the crime and the unclear link between the
    crime and his mental condition, decided not to vary downward.
    Ultimately, the Court sentenced Tucker to 36 months for robbery “to be followed
    by 84 months as a mandatory consecutive sentence.” (App. at 74.) He was additionally
    sentenced to 5 years‟ supervised release and was required to pay restitution of $2,145 and
    special assessments of $200.
    Tucker timely appealed. His counsel has moved to withdraw and has filed a brief
    pursuant to Anders, supporting the motion. Tucker has not filed a pro se brief.
    II.    Discussion1
    A.     Standard of Review
    Under Anders, counsel may seek to withdraw from representing an indigent
    criminal defendant on appeal if there are no nonfrivolous issues to appeal. United States
    v. Marvin, 
    211 F.3d 778
    , 779 (3d Cir. 2000). We exercise plenary review to determine
    whether there are any such issues. See Penson v. Ohio, 
    488 U.S. 75
    , 80 (1988) (noting
    that, in the Anders context, a court must conduct an “examination of all the proceedings”
    (internal quotation marks omitted)). Whether an issue is frivolous is informed by 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).
    3
    standard of review for each potential claim raised. See United States v. Schuh, 
    289 F.3d 968
    , 974-76 (7th Cir. 2002).
    B.     Anders Analysis
    We implement Anders through our Local Appellate Rule (“L.A.R.”) 109.2(a),
    which provides, in relevant part, as follows:
    Where, 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 v. California,
    
    386 U.S. 738
     (1967), which must be served upon the appellant and the
    United States. The United States must file a brief in response. Appellant
    may also file a brief in response pro se. … If the panel agrees that the
    appeal is without merit, it will grant counsel‟s Anders motion, and dispose
    of the appeal without appointing new counsel.
    3d Cir. L.A.R. 109.2(a). We ask two principal questions when counsel proceeds under
    Anders: whether counsel has “adequately fulfilled” the requirements of L.A.R. 109.2(a)
    and whether an independent review of the record presents any nonfrivolous issues.
    United States v. Youla, 
    241 F.3d 296
    , 300 (3d Cir. 2001).
    The first question – whether counsel has “adequately fulfilled” the requirements of
    L.A.R. 109.2(a) – often turns, as it does here, on the adequacy of counsel‟s supporting
    brief. To be adequate under L.A.R. 109.2(a), an Anders brief must (1) “satisfy the court
    that counsel has thoroughly examined the record in search of appealable issues,” Youla,
    
    241 F.3d at 300
    ; (2) identify issues that might arguably support an appeal, see Smith v.
    Robbins, 
    528 U.S. 259
    , 285 (2000); and (3) “explain why th[ose] issues are frivolous[,]”
    Marvin, 
    211 F.3d at 780
    . “Counsel need not raise and reject every possible claim[,]” but
    he or she must still conscientiously examine the record. Youla, 
    241 F.3d at 300
    .
    4
    The second question – whether an independent review of the case raises
    nonfrivolous issues – requires us to examine the record to determine whether the appeal
    “lacks any basis in law or fact.” McCoy v. Court of Appeals of Wis., 
    486 U.S. 429
    , 438
    n.10 (1988). Where the Anders brief is adequate, we confine our review to those
    portions of the record implicated by the Anders brief. Youla, 
    241 F.3d at 301
    . Where the
    Anders brief is inadequate, we may expand our review to portions of the record
    implicated in the defendant‟s pro se brief or other filings that provide “guidance
    concerning the issues [the defendant] wishes to raise on appeal.” 
    Id.
     Regardless of the
    adequacy of the Anders brief, we may 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) (internal quotation
    marks omitted).
    Here, counsel has identified in the Anders brief three potential issues for appeal:
    jurisdiction; the validity and voluntariness of the plea; and the legality of the sentence.
    Having reviewed the Anders brief, we are satisfied that counsel has conscientiously
    examined the record. Accordingly, we confine our independent review of the record to
    the issues raised in that brief.
    1.     Jurisdiction
    The first issue raised pertains to the District Court‟s jurisdiction. The district
    courts have “original jurisdiction, exclusive of the courts of the States, of all offenses
    against the laws of the United States.” 
    18 U.S.C. § 3231
    . By perpetrating an armed bank
    robbery, Tucker was committing “offenses against the laws of the United States,”
    5
    specifically 
    18 U.S.C. §§ 2113
    (d) and 924(c)(1).2 Accordingly, the District Court had
    jurisdiction to adjudicate the case, and the issue is frivolous.
    2.      Knowing and Voluntary Plea
    The second issue raised pertains to whether the District Court properly determined
    that Tucker‟s plea was knowing and voluntary. To withstand challenge, a guilty plea
    must comply with the requirements of Rule 11 of the Federal Rules of Criminal
    Procedure, which embodies the “constitutional requirement that a guilty plea be
    „knowing‟ and „voluntary.‟” United States v. Schweitzer, 
    454 F.3d 197
    , 202 (3d Cir.
    2006). A defendant asserting a Rule 11 error for the first time on appeal must show plain
    error, that is, error that is plain or obvious and that affects his substantial rights. United
    States v. Goodson, 
    544 F.3d 529
    , 539 (3d Cir. 2008). Such error can be the basis for
    relief on appeal if failing to correct it would “seriously affect[] the fairness, integrity, or
    public reputation of judicial proceedings.” Johnson v. United States, 
    520 U.S. 461
    , 467
    (1997) (internal quotation marks and citations omitted).
    Here, the guilty plea met the necessary legal requirements. The District Court
    addressed Tucker personally in open court and confirmed that he understood the rights he
    was forfeiting, that he understood the terms of his plea agreement, and that he was
    pleading guilty knowingly and voluntarily. Given the District Court‟s thorough colloquy,
    and the fact that Tucker has neither sought to withdraw his plea nor suggested grounds
    2
    The elements of his crimes, including the jurisdictional elements, were admitted
    by Tucker in the plea colloquy.
    6
    for finding it involuntary or less than knowing, we see no error and thus no nonfrivolous
    basis upon which Tucker may challenge his guilty plea.
    3.     Tucker’s Sentence
    The final potential issue pertains to whether the District Court properly determined
    Tucker‟s sentence. We review the District Court‟s sentencing decisions for abuse of
    discretion, looking first for procedural error and then examining the sentence for
    substantive reasonableness. United States v. Wise, 
    515 F.3d 207
    , 217-18 (3d Cir. 2008).
    Here, the record reveals no procedural or substantive problems. The District Court
    did not miscalculate the Guidelines range, treat the Guidelines as mandatory, or fail to
    consider the 
    18 U.S.C. § 3553
    (a) factors. Moreover, the Court gave meaningful
    consideration to Tucker‟s mental health issues and decided to deny his request for a
    downward variance in light of the seriousness of the offense, all of which is consistent
    with § 3553(a). The sentence therefore was procedurally sound.
    Likewise, the sentence is substantively reasonable. Our review must be, “to a
    great degree, deferential.” Wise, 
    515 F.3d at 218
    . Because the District Court imposed a
    sentence within the properly calculated Guidelines range that took into account, inter
    alia, Tucker‟s criminal history, his mental condition and the seriousness of his crime,
    there was no abuse of discretion. The record, then, presents no nonfrivolous basis upon
    which Tucker may appeal his sentence.
    III.   Conclusion
    For the forgoing reasons we will grant counsel‟s motion to withdraw and affirm
    the District Court‟s judgment.
    7