United States v. Taylor , 519 F. App'x 85 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-2150
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UNITED STATES OF AMERICA
v.
ROBERT TAYLOR, JR., Appellant
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No. 12-2151
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UNITED STATES OF AMERICA
v.
ROBERT TAYLOR, JR., Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. Action No. 2-11-cr-00154-001 and 2-11-cr-00543-001)
District Judge: Honorable Mitchell S. Goldberg
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Submitted Under Third Circuit L.A.R. 34.1(a)
March 22, 2013
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Before: MCKEE, Chief Judge, GREENAWAY, JR., and GARTH, Circuit Judges.
(Opinion Filed: March 27, 2013)
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OPINION
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GREENAWAY, JR., Circuit Judge.
Robert Taylor (“Taylor”) appeals the District Court’s April 24, 2012 judgment
revoking his supervised release, and sentence of 10 months’ imprisonment and 2 years of
supervised release. His counsel filed a brief, pursuant to Anders v. California, 386 U.S.
738 (1967), asserting that no nonfrivolous issues exist for appeal and seeking to withdraw
as counsel. For the reasons below, we will grant counsel’s motion to withdraw and
affirm the judgment of the District Court.
I. Background
We write primarily for the benefit of the parties and recount only the facts
essential to our discussion. In 1998, Taylor was convicted of possession with intent to
distribute cocaine and marijuana and sentenced to 151 months’ imprisonment, 3 years of
supervised release, a fine of $800, and a special assessment of $100. In 2000, as a federal
inmate, Taylor was convicted of one count of possession of a prohibited object. He was
sentenced to an additional 12 months’ imprisonment, 3 years of supervised release, and a
$100 special assessment. As a condition of his release, Taylor could not commit another
“federal, state or local crime.”
After completing his sentences for both offenses, Taylor, while on supervised
release, was apprehended by the police on May 15, 2011 due to his involvement in a
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scheme to return stolen merchandise to home improvement stores in exchange for cash
and gift cards. Taylor appeared in the Court of Common Pleas in Bucks County,
Pennsylvania where he pled guilty to disorderly conduct and received 90 days’ probation.
As a result of Taylor’s conduct, the Probation Office filed petitions alleging that
he violated his supervised release. The District Court for the Eastern District of
Pennsylvania held a revocation hearing on February 28, 2012. Taylor’s counsel argued
that Taylor’s disorderly conduct conviction, a summary offense, did not constitute a
“local crime,” as defined by the Pennsylvania Crimes Code. He also claimed that there
was insufficient evidence to find that a theft had occurred.
The District Court adopted the government’s argument that a summary offense did
constitute a “local crime,” and that Taylor had violated his supervised release. After a
hearing, the Court found that Taylor had committed a Grade C violation. Given Taylor’s
prior offenses, he qualified for a Category VI criminal history. The applicable
Sentencing Guidelines range was 8 to 14 months. The Court sentenced Taylor to 10
months’ imprisonment, and an additional two years of supervised release.
II. Jurisdiction
The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
III. Standard of Review
“In [Anders], the Supreme Court explained the general duties of a lawyer
representing an indigent criminal defendant on appeal when the lawyer seeks leave to
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withdraw from continued representation on the grounds that there are no nonfrivolous
issues to appeal.” United States v. Marvin, 211 F.3d 778, 779 (3d Cir. 2000). The
attorney must always “support his client’s appeal to the best of his ability.” Anders, 386
U.S. at 744. If, however, “counsel finds his case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request permission to
withdraw.” Id.To withdraw, counsel must “satisfy the court that he or she has thoroughly scoured
the record in search of appealable issues,” and “explain why the issues are frivolous.”
Marvin, 211 F.3d at 780. Thus, this Court’s inquiry when considering a lawyer’s Anders
brief is two-fold: we must determine “(1) whether counsel adequately fulfilled [Third
Circuit Local Appellate Rule 109.2’s] requirements; and (2) whether an independent
review of the record presents any non-frivolous issues.” United States v. Youla, 241 F.3d
296, 300 (3d Cir. 2001). In accordance with 3d Cir. L.A.R. Rule 109.2, if an appeal is
judged to be wholly frivolous, this Court must “grant trial counsel’s Anders motion, and
dispose of the appeal without appointing new counsel.” Id. (quoting 3d Cir. L.A.R. Rule
109.2(a)); see also United States v. Coleman, 575 F.3d 316, 321 (3d Cir. 2009) (quotation
marks omitted).
III. Analysis
Counsel thoroughly reviewed the record and concluded that: (1) the initiation of
the revocation cannot be challenged as outside of the District Court’s authority; (2)
Taylor was afforded all procedural protections under Federal Rule of Criminal Procedure
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32.1, and received the required due process; (3) there was sufficient evidence in the
record to support the District Court’s revocation of supervised release; and (4) the
sentence imposed by the District Court was both procedurally and substantively sound.
A. Initiation of Revocation Proceeding
Taylor may challenge the validity of the probation officer’s petition to the court as
an improper initiation of his revocation hearing. However, this is not a colorable claim.
Probation officers do have authority to petition the court. See, e.g., United States v.
Davis, 151 F.3d 1304, 1307 (10th Cir. 1998). 18 U.S.C. § 3603(2) authorizes a probation
officer “to report the conduct and condition [of a person on supervised release] to the
sentencing court,” and the “petition” serves as such a report. Id. at 1307. The petition is
“illustrative” and it is ultimately the sentencing court that decides whether to initiate
revocation proceedings, which it has authority to do under 18 U.S.C. § 3583(e). We
agree with counsel’s conclusion that appealing the initiation of the revocation hearing
would be frivolous.
B. Procedural Protections
Because revocation of supervised release proceedings may result in a “loss of
liberty,” they are subject to due process considerations. United States v. Barnhart, 980
F.2d 219, 222 (3d Cir. 1992) (citing Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973)).
These requirements have been incorporated into Fed. R. Crim. P. 32.1, which provides
for a prompt preliminary hearing to determine probable cause (Fed. R. Crim. P.
32.1(b)(1)(B)), as well as a revocation hearing (Fed. R. Crim. P. 32.1(b)(2)).
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Having reviewed the record, counsel found that Taylor was afforded all of the
proper procedural protections. A preliminary hearing was held in compliance with Fed.
R. Crim. P. 32.1(b)(1)(B).
For the revocation hearing, Fed. R. Crim. P. 32.1(b)(2) requires the Court to hold
such a hearing “within a reasonable time,” and provides that a person receive all
procedural requirements. Taylor was accorded all process due to him. Taylor received
written notice of the alleged violations in the form of the probation officer’s petition for
revocation. See Barnhart, 980 F.2d at 223. The evidence against Taylor was disclosed,
and through counsel, he was given an opportunity to question the probation and
investigating officer, as well as present evidence on his own behalf. Moreover, although
he refrained from doing so, he was allowed to make a statement. We agree that a
challenge arguing that the District Court did not comply with the Fed. R. Crim. P. 32.1
and due process requirements would be frivolous.
C. Sufficiency of Evidence
During the proceedings, Taylor challenged whether his Pennsylvania disorderly
conduct conviction, a “summary offense,” qualified as a “local crime,” for purposes of
his supervised release condition. 1 He argued that the Pennsylvania Crimes Code in its
definition of offense, 18 Pa. Cons. Stat. Ann. § 106, did not include summary offenses in
its list of crimes, which included other felonies and misdemeanors. In response, the
1
One of the conditions for supervised release stated: “The defendant shall not
commit another federal, state, or local crime.”
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government relied on the fact that 106(a) defines a “crime” as an offense “for which a
sentence of death or of imprisonment is authorized,” 18 Pa. Cons. Stat. Ann. § 106, and
the definition of “summary offense,” provides for a sentence of imprisonment, id. at
§ 106(c). 2 After reviewing both arguments, the District Court adopted the reasoning of
the government. We agree with counsel that there was a sufficient legal basis to support
the District Court’s finding that a summary offense was a “local crime.”
Moreover, the District Court determined that the investigating detective’s
testimony regarding Taylor’s admission that he should have known that the items he was
returning were stolen, was enough to find that a theft had occurred. When the condition
of supervised release is not to commit a crime, the District Court does not have to rely on
an indictment or conviction as evidence to find a violation. United States v. Poellnitz,
372 F.3d 562, 566 (3d Cir. 2004). The Court is only required under 18 U.S.C.
§ 3583(e)(3) to find, by a preponderance of the evidence, that a violation occurred.
Whether based on its finding that Taylor’s Pennsylvania conviction was a “local crime”
or that a theft had occurred, the District Court was provided with more than enough
evidence to find a violation of supervised release, and no nonfrivolous challenge against
the sufficiency of this evidence exists.
2
Counsel, and the government in its letter to the District Court, provided
Pennsylvania Superior Court and Commonwealth Court cases that support the conclusion
that a summary offense is a crime. See, e.g., Commonwealth v. Matty, 619 A.2d 1383,
1385-86 (Pa. Super. Ct. 1993); In Interest of Golden, 365 A.2d 157, 158-59 (Pa. Super.
Ct. 1976); Lewis v. Commonwealth, 459 A.2d 1339, 1341 (Pa. Commw. Ct. 1983).
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D. Reasonableness of Sentence
Finally, counsel concludes that a challenge of the reasonableness of Taylor’s
sentence of 10 months’ imprisonment, and two years of supervised release would be
frivolous.
Under 18 U.S.C. § 3583(e), if the District Court finds a violation of supervised
release, the District Court has the authority to impose a sentence of imprisonment,
including another term of supervised release. Johnson v. United States, 529 U.S. 694,
713 (2000). In evaluating an appeal of a sentence imposed following revocation, we
review the District Court’s decision for procedural and substantive reasonableness under
an abuse of discretion standard. United States v. Young, 634 F.3d 233, 237 (3d Cir. 2011)
(quoting United States v. Doe, 617 F.3d 766, 770 (3d Cir. 2010)). Procedurally, the
District Court must give meaningful consideration of the factors in 18 U.S.C. § 3553(a),
and apply those factors reasonably. Id. Substantively, we look to “whether the final
sentence, wherever it may lie within the permissible statutory range, was premised upon
appropriate and judicious consideration of the relevant factors.” Id.At sentencing, after hearing arguments on both sides, the District Court found
Taylor’s conduct to constitute a Grade C violation, which, given his Category VI criminal
history determination, set the statutory range from 8 to 14 months. 18 U.S.C. § 3583(e)
and 18 U.S.C. § 3583(h) also limit the sentence the Court may impose given the class of
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felony for which the original supervised release was imposed. 3 Given Taylor’s original
offenses, a term of 10 months of imprisonment and the additional two years of supervised
release were well within the limits imposed by 18 U.S.C. § 3583(e) and 18 U.S.C.
§ 3583(h) and the range set by the Guidelines.
The District Court also considered the relevant factors of 18 U.S.C. § 3553(a), as
required by 18 U.S.C. § 3583(e). Although the District Court did not discuss each
§ 3553(a) provision at length, the record as a whole reflects the Court’s consideration of
these factors when imposing Taylor’s sentence, including the nature of the crime and the
defendant’s criminal history. The District Court’s sentence is procedurally reasonable.
The District Court’s sentence was also substantively sound. The correct procedure
was employed and a reasonable conclusion reached given the evidence presented. See
Young, 634 F.3d at 237 (“Absent procedural error, we will affirm the sentencing court
‘unless no reasonable sentencing court would have imposed the same sentence on that
particular defendant for the reasons the district court provided.’” (quoting Doe, 617 F.3d
at 770 )). As noted, any challenge to the sentencing procedure would be frivolous.
VI. Conclusion
Because this Court’s own review of the record reveals no additional viable issues,
we find that no nonfrivolous issues exist for consideration on appeal. We will grant
counsel’s motion to withdraw, pursuant to Anders, and affirm the judgment of the District
3
The limits imposed by 18 U.S.C. § 3583(e) on the term of imprisonment was
three years for the Class B felony and two years for the Class D felony. The limits
imposed by 18 U.S.C. § 3583(h) on the term of supervised release was four years for the
Class B felony and two years for the Class D felony.
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Court. Counsel is also relieved of any obligation to file a petition for a writ of certiorari
in the Supreme Court. See 3d Cir. L.A.R. 109.2(b).
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