United States v. Mitchell , 124 F. App'x 750 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
3-11-2005
USA v. Mitchell
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3862
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 03-3862
UNITED STATES OF AMERICA
v.
RICHARD MITCHELL,
Appellant
__________________________
On appeal from the United States District Court
for the District of New Jersey
District Judge: The Honorable Mary L. Cooper
District Court No. 01-cr-430
__________________________
Submitted Pursuant to Third Circuit LAR 34.1
June 16, 2004
Before: ALITO and SMITH, Circuit Judges,
and DUBOIS, District Judge *
(Filed: March 11, 2005)
_________________
OPINION OF THE COURT
_________________
SMITH, Circuit Judge.
On January 16, 2003, Richard Mitchell pleaded guilty to conspiracy to distribute
*
The Honorable Jan E. DuBois, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
heroin in violation of 21 U.S.C. § 846. At sentencing on September 9, the District Court
determined that Mitchell was a career offender under United States Sentencing Guideline
(“U.S.S.G.”) § 4B1.1, resulting in an enhancement of his offense level to 32 and his
criminal history category to VI. The District Judge accorded a three level decrease for
Mitchell’s acceptance of responsibility, yielding a guideline range of 151 to 188 months
of imprisonment. The Court denied Mitchell’s request under U.S.S.G. § 4A1.3 for a
downward departure on the basis that his criminal history overstated the seriousness of his
prior criminal activities. Mitchell was sentenced to 151 months imprisonment, the low
end of his guideline range, followed by a three year term of supervised release. After
filing a timely notice of appeal, Mitchell’s counsel moved to withdraw pursuant to Anders
v. California, 386 U.S. 738 (1967). Mitchell filed an informal brief pursuant to Third
Circuit Local Appellate Rule 109.2(a).
In Anders, the Supreme Court held that the “constitutional requirement of
substantial equality and fair process” necessitates that appellant’s counsel vigorously act
as an advocate for the defendant. 386 U.S. at 744. Thus, counsel’s
role as advocate requires that he support his client’s appeal to the best of his
ability. Of course, if 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. That request, must, however, be accompanied by a
brief referring to anything in the record that might arguably support the
appeal.
Id. In United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001), we reiterated that an
Anders brief must demonstrate that counsel has “thoroughly examined the record in
2
search of appealable issues,” and it must “explain why the issues are frivolous.” Thus,
our inquiry is twofold: (1) whether counsel adequately fulfilled the requirements of
Anders; and (2) “whether an independent review of the record presents any non-frivolous
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 “after a full examination
of all the proceedings, to decide whether the case is wholly frivolous”). If review fails to
reveal any non-frivolous issues, the court “may grant counsel’s request to withdraw and
dismiss the appeal.” Anders, 386 U.S. at 744.
After considering counsel’s Anders brief, we are satisfied that counsel thoroughly
examined the record for issues of arguable merit and fulfilled the requirements of
Anders. Given Mitchell’s guilty plea, he is limited to a few select issues upon which he
may base his challenge on appeal: the District Court’s jurisdiction, the validity of the
guilty plea, and the legality of the sentence. See United States v. Broce, 488 U.S. 563,
574-76 (1989); 18 U.S.C. § 3742(a). There is no basis for disputing the District Court’s
jurisdiction over this federal criminal offense. See 18 U.S.C. § 3231.1
Counsel asserted that there were no deficiencies with regard to Mitchell’s guilty
plea. To demonstrate that Mitchell’s plea was voluntary and intelligent, counsel recited
the history of the negotiations resulting in the plea agreement for this drug conspiracy
offense. In addition, counsel appended the plea agreement and the transcript of the guilty
1
We exercise appellate jurisdiction pursuant to 18 U.S.C. § 3742(a).
3
plea colloquy. Although Mitchell’s informal pro se brief challenges the integrity of his
guilty plea, our review of the appended plea agreement and colloquy verifies that
Mitchell’s plea complied with both the requirements of Federal Rule of Criminal
Procedure 11 and Boykin v. Alabama, 395 U.S. 238 (1969).
Mitchell challenges his sentence on the basis of United States v. Booker, 543 U.S.
__, 125 S. Ct. 738 (2005). Having determined that the sentencing issues appellant raises
are best determined by the District Court in the first instance, we will vacate the sentence
and remand for re-sentencing in accordance with Booker.
An appropriate order will follow.