United States v. Richard Hughes , 266 F. App'x 154 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
2-21-2008
USA v. Richard Hughes
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2107
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2107
UNITED STATES OF AMERICA
v.
RICHARD HUGHES,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 05-cr-00153)
District Judge: Honorable Arthur J. Schwab
Submitted Under Third Circuit LAR 34.1(a)
January 31, 2008
Before: RENDELL and CHAGARES, Circuit Judges,
and POLLAK, *District Judge.
(Filed: February 21, 2008)
OPINION OF THE COURT
*Honorable Louis H. Pollak, Senior Judge of the United States District Court for
the Eastern District of Pennsylvania, sitting by designation.
RENDELL, Circuit Judge.
Richard Hughes was charged with possession of a firearm by a convicted felon in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He pled guilty on October 18, 2005, and,
on March 24, 2006, the District Court sentenced Hughes to the mandatory minimum
sentence of 15 years’ incarceration pursuant to the Armed Career Criminal Act, 18 U.S.C.
§ 924(e). Hughes timely appealed. Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), requesting permission to withdraw because he is unable
to find any non-frivolous issues for appeal after a conscientious review of the record.
Hughes was given notice of his counsel’s intent to withdraw and has not filed a pro se
brief. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). For the
reasons stated below, we will grant counsel’s motion to withdraw and affirm the District
Court’s judgment of sentence.
Evaluation of an Anders brief requires a twofold inquiry: (1) whether 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
nonfrivolous issues. United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Where the
Anders brief appears adequate on its face, our review is limited to the portions of the
record identified in the brief, along with any issues raised by an appellant in a pro se
brief. See id. at 301. We conclude that the brief in this case is adequate, and, in the
absence of a pro se brief by the appellant, it will guide our independent review of the
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record.
Pursuant to his obligation under the first prong of our analysis, counsel has
identified several potential, but frivolous, issues. By entering an unconditional guilty plea
to two Counts, Hughes waived all claims for appellate relief with the exception of claims
(1) that the court lacked jurisdiction to accept the plea, (2) that the plea is invalid under
applicable statutory and constitutional standards, and (3) that the sentence is illegal. See
United States v. Broce, 488 U.S. 563 (1989). Neither of the first two categories of
unwaived claims applies as the Court had jurisdiction under 18 U.S.C. § 3231 and the
Change of Plea hearing shows that the guilty plea was valid, knowing, and voluntary
pursuant to Fed. R. Crim. P. 11 and Boykin v. Alabama, 395 U.S. 238 (1969). Counsel
identifies three issues related to Hughes’ sentence.
First, counsel raises the issue of the applicability of the Armed Career Criminal
Act (ACCA) to Hughes. Hughes incurred more than the three prior convictions necessary
for the ACCA to apply. Hughes’ criminal record includes a plea of guilty to burglary in
1989 and a plea of guilty to 17 counts of burglary in 1991. PSR ¶¶38, 44 & 45. Although
17 of the prior convictions result from a single judicial proceeding, they arise from
separate criminal episodes on 16 different dates and in 12 separate locations and thus are
treated as multiple convictions. See United States v. Randolph, 364 F.3d 118, 123-24 (3d
Cir. 2004). Counsel also notes that Hughes received more than constitutionally adequate
notice of the government’s intention to seek the enhanced sentence under the ACCA. See
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United States v. Mack, 229 F.3d 226, 231-32 (3d Cir. 2000). In particular, the Indictment
charged Hughes with violating 18 U.S.C. §§ 922(g)(1) and 924(e).
Second, counsel recognizes that the government met its burden of proof to support
the mandatory minimum sentence under the ACCA such that any argument based on the
burden of proof would be frivolous. At sentencing, both Hughes and his trial counsel
admitted that the seventeen prior burglaries included all of the elements of generic
burglary and therefore qualified as predicate offenses for the purposes of the ACCA. See
United States v. Bennett, 100 F.3d 1105, 1107-10 (3d Cir. 1996).
Last, a review of the sentencing transcript reveals that the District Court complied
with all of the requirements of Fed. R. Crim. P. 32 that were applicable in Hughes’ case.
Our independent review of the record yields no other non-frivolous arguments that
could possibly support an appeal and we are satisfied that all the requirements of
Anders have been met. Accordingly, we will AFFIRM the judgment of the District Court
and, in a separate order, GRANT counsel’s motion to withdraw.
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