United States v. Stephon Paige ( 2011 )


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  •                                                  NOT PRECEDENTIAL
    
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________
    
                                     No. 10-2232
                                    _____________
    
                          UNITED STATES OF AMERICA
    
                                           v.
    
                                 STEPHON PAIGE,
                                                       Appellant
                                    _____________
    
                   On Appeal from the United States District Court
                              for the District of New Jersey
                         District Court No. 1-06-cr-00505-001
                  District Judge: The Honorable Joseph H. Rodriguez
    
    
                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  January 27, 2011
    
               Before: McKEE, Chief Judge, and SMITH, Circuit Judges,
                          and STEARNS, District Judge*
    
                               (Filed: February 3, 2011)
    
    
                                      OPINION
    
    
    STEARNS, District Judge.
    
    
          *
            The Honorable Richard G. Stearns, United States District Judge for the
    United States District Court of Massachusetts, sitting by designation.
          This is an appeal from a revocation of supervised release and a subsequent
    
    sentence. On October 20, 2006, Stephon Paige was sentenced by the New Jersey
    
    District Court to eighteen-months imprisonment and three years of supervised
    
    release following a conviction for uttering counterfeit securities. On March 23,
    
    2010, the United States Probation Office filed a petition alleging nine violations of
    
    Paige=s conditions of supervised release. Paige pled guilty on April 21, 2010, to
    
    one of the nine violations B the failure to maintain lawful employment (violation 1)
    
    B and the remaining alleged violations were dismissed.1 Judge Rodriguez accepted
    
    the plea and conducted a sentencing colloquy with counsel for Paige and the
    
    government. Paige admitted irresponsibility, but requested house arrest or no more
    
    than four-months incarceration (the advisory Guidelines minimum).                 The
    
    government advocated for a sentence of ten-months imprisonment, which the court
    
    imposed, followed by two years of additional supervised release.2 The court stated
    
    its belief that a term of incarceration was appropriate in light of Paige=s failure to
    
    make good-faith efforts to comply with the terms of his supervised release and his
    
          1
             These were: (2) Failure to notify probation officer of September 1, 2009
    arrest for bail jumping in a child support case; (3) Positive drug test; (4) Failure to
    submit monthly written reports; (5) Failure to fulfill curfew obligation; (6) Failure
    to report to probation office as directed; (7) Failure to comply with code-a-phone
    requirements; (8) Failure to attend literacy classes; and (9) Failure to pay child
    support.
          2
            Violation 1 is a Grade C violation that carries a statutory maximum
    sentence of 24-months imprisonment.
    
                                              2
    Acontinuing lack of respect and continuing violations of conditions that are
    
    reasonable . . . .@3
    
           After the sentencing, Paige was advised by his counsel that he had no basis
    
    for an appeal. Nonetheless, Paige informed counsel of his desire to appeal the
    
    sentence. On April 26, 2010, counsel filed a Notice of Appeal on Paige=s behalf.
    
    After reviewing the record and reporting no viable issue for appeal, Paige=s counsel
    
    requests to withdraw pursuant to Anders v. California, 
    386 U.S. 744
     (1967). See
    
    also 3d Cir. L.A.R. 109.2(a).
    
               In United States v. Youla, 
    241 F.3d 296
    , 300 (3d Cir. 2001), we explained
    
    that an Anders brief must demonstrate that counsel has Athoroughly examined the
    
    record in search of appealable issues,@ and the brief must Aexplain why the
    
    [identified] issues are frivolous.@ Our inquiry is twofold: (1) whether counsel
    
    adequately fulfilled the requirements of Anders; and (2) Awhether an independent
    
    review of the record presents any nonfrivolous issues.@ Id. (citing United States v.
    
    Marvin, 
    211 F.3d 778
    , 780 (3d Cir. 2000)); see also Anders, 386 U.S. at 744
    
    (explaining that the court must proceed, Aafter a full examination of all the
    
    proceedings, to decide whether the case is wholly frivolous@). If the review fails to
    
    identify any nonfrivolous issues, the court Amay grant counsel=s request to withdraw
    
    
           3
            Paige=s probation officer made numerous attempts to assist Paige, including
    two in-office adjustment sessions, and an offer to drive Paige to different places of
                                               3
    and dismiss the appeal.@ Id.
    
          We find counsel=s Anders brief to comply with the court=s directives. It
    
    identifies three potentially appealable issues B jurisdiction; whether the plea
    
    colloquy was defective; and the legality of the sentence B and explains why each of
    
    these issues presents a frivolous ground of appeal. See United States v. Broce, 
    488 U.S. 563
    , 569 (1989) (following an unconditional guilty plea, a defendant may only
    
    challenge the validity of the plea or the court=s jurisdiction); Menna v. New York,
    
    
    423 U.S. 61
    , 62 n.2 (1975) (per curiam) (a valid guilty plea waives all prior
    
    constitutional errors unless related to the court=s authority to Ahal[e] a defendant into
    
    court on a charge.@).     Counsel=s Anders brief discusses the plea hearing, the
    
    standard of review (revocation of supervised release is reviewed for an abuse of
    
    discretion, see Gov=t of the Virgin Islands v. Martinez, 
    239 F.3d 293
    , 297 (3d Cir.
    
    2001)), and demonstrates that the District Court fully complied with and, if
    
    anything, exceeded the requirements of Fed. R. Crim. P. 32.1(b)(2). The District
    
    Court gave meaningful consideration to the factors set out in 18 U.S.C. ' 3553(a),
    
    and the sentence fell within the advisory Guidelines range and was well below the
    
    applicable statutory maximum.
    
          As after our own review of the record, we agree with counsel that there are
    
    no nonfrivolous issues meriting an appeal, we will grant counsel=s motion to
    
    possible employment to submit job applications. Paige declined all of the offers.
    
                                               4
    withdraw and affirm the District Court=s revocation of Paige=s supervised release
    
    and the sentence imposed.
    
    
    
    
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