2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-16-2009

USA v. Taibika Dawson

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2155

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Recommended Citation

"USA v. Taibika Dawson" (2009). 2009 Decisions. Paper 1529.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-2155

 

UNITED STATES OF AMERICA

v.

TAIBIKA DAWSON,

 Appellant

 

Appeal from the United States District Court

for the District of New Jersey

(D.C. Criminal No. 07-cr-00316-1)

District Judge: Honorable Joel A. Pisano

 

Submitted Under Third Circuit LAR 34.1(a)

March 26, 2009

Before: RENDELL, AMBRO and JORDAN, Circuit Judges

(Filed: April 16, 2009)

 

OPINION OF THE COURT

 

RENDELL, Circuit Judge.

Taibika Dawson appeals the entry of a guilty verdict against him in the District

Court for the District of New Jersey for possession of a firearm by a convicted felon in

violation of 18 U.S.C. §§ 922(g)(1)-(2). Dawson’s counsel moved to withdraw pursuant
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to Anders v. California, 386 U.S. 738 (1967). Because we find no non-frivolous

arguments in support of Dawson’s appeal, we will affirm.

As we write for the benefit of the parties, we only briefly summarize the essential

facts. In 2006, Trenton police officers on patrol observed a group loitering in the front

yard of a residence. Upon shining a light on the group, they observed Dawson holding a

black handgun at his side. Dawson ran toward the front door of the residence while

attempting to conceal the gun, and disobeyed police orders to stop and show his hands. 

The officers saw Dawson toss something into the residence. After a struggle, Dawson

was arrested and a firearm was confiscated from his person. Police subsequently

recovered a second firearm found in plain view inside the doorway. After a jury trial,

Dawson was convicted of possession of a firearm by a previously convicted felon, and

was sentenced within the applicable U.S. Sentencing Guidelines range. We construe

Dawson’s pro se arguments on appeal as challenges to the sufficiency of the evidence to

convict him and the adequacy of his appointed counsel.

We have jurisdiction under 28 U.S.C. § 1291. United States v. Tannis, 942 F.2d

196, 197 (3d. Cir. 1991). Under Anders, if court-appointed “counsel finds his case to be

wholly frivolous, after a conscientious examination of it,” he may request permission to

withdraw accompanied by a brief alerting the court to “anything in the record that might

arguably support the appeal.” Anders, 386 U.S. at 744; United States v. Youla, 241 F.3d

296, 299 (3d Cir. 2001). In assessing an Anders brief, we must determine: 1) whether
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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 non-frivolous issues.” Youla, 241 F.3d at 300. If the Anders brief appears

adequate on its face, we will confine our scrutiny to the portions of the record identified

in Appellant’s pro se brief and Counsel’s Anders brief. Id. at 301. 

In his brief, Counsel reviews what he characterizes as a “straightforward and

simple” case, in which the Government produced three police officer witnesses, each of

whom testified to seeing Dawson in possession of a firearm. (Anders Br. at 6.) Counsel

relates that the defense’s effort to suppress firearm evidence prior to trial failed when

witnesses the defense expected to contradict the Government’s witnesses failed to appear. 

Counsel also asserts that there can be no arguments relating to admission of evidence at

trial because Dawson succeeded in the only significant ruling when the Court agreed to

keep out evidence of drugs and money at the scene. As for sentencing, Counsel notes that

the District Court rejected a four-level upward adjustment recommended in the PreSentence Report, and sentenced Dawson at the very bottom of the resulting guideline

range. Upon reviewing the proceedings from start to finish, Counsel concluded that

there were no non-frivolous avenues for appeal. We conclude that Counsel’s Anders

brief is adequate on its face, and our examination of the record relating to the proceedings

described by Counsel reveals no non-frivolous arguments. We therefore limit further

inquiry to the issues raised by Dawson pro se.
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Two additional arguments are made by Dawson in his pro se brief: that the

Government’s police officer witnesses lacked credibility, and that Dawson received

ineffective assistance of counsel in violation of the Sixth Amendment. With regard to the

credibility of witnesses on appeal, we do not “usurp the role of the jury by weighing

credibility and assigning weight to the evidence,” United States v. Wise, 515 F.3d 207,

214 (3d Cir. 2008). The Government presented three witnesses testifying that Dawson

was in possession of a firearm and it was for the jury to decide whether to credit this

testimony. This argument accordingly lacks merit. As for the alleged ineffective

assistance of counsel, we “generally do[] not review Sixth Amendment ineffective

assistance of counsel claims on direct appeal.” United States v. Olfano, 503 F.3d 240, 246

(3d Cir. 2007). There is no reason here to depart from this general rule. 

We find no non-frivolous arguments in support of Dawson’s appeal. Counsel is

under no obligation to file a petition for writ of certiorari in the United States Supreme

Court. See Third Circuit L.A.R. 109.2(b). We will affirm the judgment of the District

Court and, in a separate order, grant Counsel’s motion to withdraw.