United States v. George Elie, Jr. ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________
No. 18-3759
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UNITED STATES OF AMERICA
v.
GEORGE ELIE, JR.
a/k/a Unc,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Crim. No. 1-16-cr-00154-001
District Judge: Honorable Christopher C. Conner
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Submitted Under Third Circuit L.A.R. 34.1(a)
July 11, 2019
Before: SHWARTZ, KRAUSE, and FUENTES, Circuit Judges.
(Filed: July 23, 2019)
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OPINION**
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**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge.
George Elie, Jr. appeals a criminal conviction and sentence entered by the United
States District Court for the Middle District of Pennsylvania. Elie’s Counsel has concluded
that that his appeal presents no nonfrivolous issue and has filed a motion to withdraw under
Anders v. California.1 We will grant the motion to withdraw and affirm the conviction and
sentence.
I.
Elie pled guilty to conspiracy to distribute at least 100 grams of heroin in violation
of 21 U.S.C. § 846. Pursuant to that plea agreement, Elie waived the right to any appeal,
and agreed that the appropriate calculation under the federal Sentencing Guidelines, before
any reduction for acceptance of responsibility, was 188-235 months. The District Court
reviewed the plea agreement with Elie and found that Elie’s guilty plea was knowing and
voluntary.
After the plea, the United States Probation Office prepared a presentence
investigation report, which recommended Elie receive a three-level sentencing reduction
for acceptance of responsibility, resulting in a recommended sentence between 140 and
175 months. Elie filed no objections to that report that would affect the sentencing
calculation.
1
386 U.S. 738 (1967).
2
At sentencing, the District Court agreed that a three-level sentencing reduction for
acceptance of responsibility was appropriate, and that Elie’s applicable sentencing range
under the Guidelines was 140-175 months. The District Court reviewed the sentencing
factors found in 18 U.S.C. § 3553(a), and sentenced Elie to 175 months’ imprisonment,
five years of supervised release, a fine of $3,000, and a special assessment of $100. Elie
filed an appeal.2
II.
Under Anders, when a defendant’s attorney concludes that there are no nonfrivolous
grounds for appeal, the attorney must file a motion to withdraw as defendant’s counsel,
accompanied by a brief stating all possible grounds for appeal.3 The defendant may, at his
election, file a pro se brief on his own behalf. Elie’s Counsel has filed an Anders brief
here. Elie has declined to file a separate brief.
We engage in a two-step inquiry to resolve an Anders appeal. First, we determine
whether counsel “thoroughly examined the record in search of appealable issues” and
“explain[ed] why the issues are frivolous.”4 If counsel’s Anders brief satisfies the first
2
Since this was a federal crime, the District Court had subject matter jurisdiction pursuant
to 18 U.S.C. § 3231. We possess appellate jurisdiction under 18 U.S.C. § 3742 and 28
U.S.C. § 1291. The Court exercises plenary review to determine whether there are any
nonfrivolous issues. See Simon v. Gov’t of the Virgin Islands, 679 F.3d 109, 114 (3d Cir.
2012).
3
Anders, 386 U.S. at 744.
4
United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).
3
requirement, then we move on to the second inquiry—whether an independent review of
the record reveals any nonfrivolous issues.5
In her brief, Counsel reviews the potential bases for appeal. She establishes
that the District Court had jurisdiction over Elie’s conduct, which violated federal law and
occurred in the Middle District of Pennsylvania. Counsel also shows that Elie’s plea was
knowing and voluntary, that Elie waived his rights to appeal in his plea agreement, and that
all Fed. R. Crim. P. 11 requirements were satisfied. Additionally, she shows that Elie’s
sentencing calculation was appropriate, and consistent with the terms of Elie’s plea
agreement. She also categorically demonstrates, with citations to the record, that the
District Court followed all procedural requirements in imposing Elie’s sentence, including
consideration of the § 3553(a) sentencing factors. The Supreme Court in United States v.
Booker directs us to review sentences for reasonableness, and Counsel shows that Elie’s
sentence is within the range of the Sentencing Guidelines calculation, and is otherwise
reasonable and consistent with the Booker standard.6
We are satisfied that Counsel has met her obligations under Anders. Our
independent review of the record identifies no additional nonfrivolous grounds for appeal.
III.
For the foregoing reasons, we will grant Counsel’s motion to withdraw and will
affirm Elie’s conviction and sentence.
5
Id.
6
543 U.S. 220, 261-62 (2005).
4