United States v. Perkins , 180 F. App'x 342 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-10-2006
USA v. Perkins
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1166
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1166
UNITED STATES OF AMERICA
v.
NASIM PERKINS
a/k/a Malik Johnson
a/k/a Arthur Perkins
a/k/a Ronnie Reagan
Nasim Perkins,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 03-cr-00303)
District Judge: Honorable John R. Padova
Submitted Under Third Circuit LAR 34.1(a)
April 27, 2006
Before: AMBRO and FUENTES, Circuit Judges,
and IRENAS,* District Judge
(Filed: May 10, 2006)
*
Honorable Joseph E. Irenas, Senior District Judge for the District of New Jersey,
sitting by designation.
OPINION
AMBRO, Circuit Judge
Nasim A. Perkins was convicted by a jury of one count of possession of cocaine
base with intent to distribute more than five grams in violation of 21 U.S.C. § 841(a)(1)
(count one), unlawful possession of a firearm by a felon in violation of 18 U.S.C. §
922(g)(1) (count three), possession of cocaine base with intent to distribute in violation of
21 U.S.C. § 841(a)(1) (count four), and possession of a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1) (count five). He was sentenced to
a 180-month term of incarceration to be followed by eight years of supervised release.
Perkin’s counsel filed an Anders motion to withdraw as counsel, asserting that all
potential grounds for appeal are frivolous. Despite the stumbling block presented by the
failure of Perkins’ counsel to abide his Anders responsibilities, we grant that motion and
affirm the judgment of the District Court for the reasons set out below.1
I.
Because we write solely for the parties, we discuss only those facts necessary to
our decision. Perkins filed, prior to trial, a motion to suppress the crack cocaine and
money recovered from his person during his February 6, 2002, arrest and a motion to
suppress the physical evidence recovered during his February 12, 2003, arrest. The
1
The District Court exercised jurisdiction over this matter pursuant to 18 U.S.C. §
3231. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
2
District Court denied Perkins’ motion to suppress the evidence recovered on February 6,
2002, finding that the police had probable cause to arrest him for violating a Pennsylvania
statute prohibiting the carrying of a firearm on a public street without a license.
Moreover, the Court denied Perkins’ motion to suppress the evidence recovered on
February 12, 2003, finding that the search warrant was supported by probable cause and
that the officers complied with the knock and announce requirement.
As noted above, the jury convicted Perkins on four of the seven counts charged.
Based on a total offense level of 26 and a criminal history category of VI, Perkins’
Sentencing Guidelines range was 120 to 150 months. However, a violation of 18 U.S.C.
§ 924(c) requires the imposition of a five-year mandatory minimum sentence that must
run consecutively to any other sentence imposed by the Court. Accordingly, the District
Court sentenced Perkins at the bottom of his Guidelines range (and at the statutory
mandatory minimum) to a term of 120 months imprisonment on the first three counts, and
a mandatory minimum term of 60 months for the 18 U.S.C. § 924(c) violation, the
sentences to run consecutively for a total imprisonment of 180 months. Perkins timely
appealed the judgment of conviction and sentence.
II.
We follow a twofold inquiry when analyzing Anders briefs. United States v.
Youla, 241 F.3d 296, 300 (3d Cir. 2001). This inquiry consists of the following: “(1)
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whether counsel adequately fulfilled the rule’s2 requirements; and (2) whether an
independent review of the record presents any nonfrivolous issues.” Id. Regarding the
first issue, we find that counsel’s brief is wholly inadequate. When an attorney submits
an Anders brief, his duties are to demonstrate that (1) he has thoroughly examined the
record for appealable issues, and (2) the issues are frivolous. Id. In attending to his
duties “[c]ounsel need not raise and reject every possible claim.” Id. Counsel, however,
must satisfy the “conscientious examination” standard set forth in Anders. Id. Perkins’
counsel gives no indication he has met this standard here.
Counsel’s analysis in his Anders brief concerning the merits of Perkins’ potential
appealable issues was one paragraph in its entirety:
The Court found the arresting officers and their testimony credible.
Appellant presented no evidence at the [s]uppression hearing. The finding
of credibility can’t be challenged. The officer in the first instance observed
Appellant with the gun in plain view, and observed him discard the gun
under a nearby truck. The other officer observed Appellant with a gun in
his hand, and observed him throw the weapon to the roof. He also observed
the bag of drugs recovered, that Appellant threw away. The drugs found on
Appellant’s person was [i]ncident to [a]rrest.
Appellant’s Anders Br. at 11 (internal citations omitted). In contrast, Perkins’ pro se brief
raises the following five issues for appeal: (1) whether the District Court erred in refusing
to suppress the physical evidence recovered on either February 6, 2002, or February 12,
2003, in connection with Perkins’ arrests; (2) whether the Court erred in instructing the
2
This refers to Third Circuit Local Appellate Rule 109.2(a), which “reflects the
guidelines the Supreme Court promulgated in Anders to assure that indigent clients
receive adequate and fair representations.” Youla, 241 F.3d at 300.
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jury on “consciousness of guilt” during trial; (3) whether the Court erred in denying
Perkins’ pro se application for substitution of counsel; (4) whether the evidence at trial
was sufficient to establish that Perkins possessed a firearm in furtherance of drug
trafficking; and (5) whether the Court imposed a lawful sentence under United States v.
Booker, 543 U.S. 220 (2005). Moreover, the Government took the time to file a
comprehensive 48 page brief addressing each issue raised by Perkins.
Not only does Perkins’ counsel not analyze any of the issues covered by Perkins or
the Government, he does not even mention them. Where such disregard exists (and here
it was blatant), we normally discharge current counsel, appoint substitute counsel, restore
the case to the calendar, and order supplemental briefing pursuant to Third Circuit L.A.R.
109.2(a). Id.
There is a narrow exception, however, for “those cases in which frivolousness is
patent.” Id. This is such a case. An independent examination of the District Court record
(including the suppression hearing, the trial transcript, the Pre-Sentencing Report, and the
sentencing transcript), along with Perkins’ pro se brief and the Government’s brief,
makes clear that all the issues raised on appeal are patently frivolous. In particular, we
note that this case presents no issues under Booker because, regardless what Perkins’
advisory Guidelines range was, the District Court had neither the power nor the discretion
to sentence Perkins to less than the statutory mandatory minimums. See Harris v. United
States, 536 U.S. 545, 565 (2002).
*****
5
Because the issues raised on appeal are patently frivolous, Perkins’ judgment of
conviction and sentence is hereby affirmed, and counsel is granted leave to withdraw.
We caution counsel, however, to resist accepting further Criminal Justice Act
appointments where the possibility exists that this kind of effort will again exhibit itself.
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