2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-20-2012

USA v. James;Artfitch

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-1253

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Recommended Citation

"USA v. James;Artfitch" (2012). 2012 Decisions. Paper 138.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 12-1253

____________

UNITED STATES OF AMERICA

v.

JAMES ARTFITCH,

 Appellant

____________

On Appeal from the United States District Court 

for the District of New Jersey

(No. 2:09-cr-00697-001)

District Judge: Hon. Stanley R. Chesler

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

November 15, 2012

Before: RENDELL, FUENTES, and CHAGARES, Circuit Judges.

(Filed: November 20, 2012)

____________

OPINION 

___________

CHAGARES, Circuit Judge. 

James Artfirtch pled guilty to one count of possession of child pornography. The 

District Court sentenced Artfitch to a term of ninety-seven months of imprisonment

followed by a five-year term of supervised release. Artfitch appeals his conviction and 
2

sentence. His counsel has moved to withdraw under Anders v. California, 386 U.S. 738 

(1967). For the reasons that follow, we will grant counsel’s motion to withdraw and 

affirm Artfitch’s conviction and sentence. 

I.

Because we write solely for the parties, we recount only those facts essential to 

our disposition. The charges against Artfitch arose from a federal child pornography 

investigation that eventually uncovered approximately 600 images of child pornography

on Artfitch’s computer. On July 7, 2010, Artfitch pled guilty to the knowing possession 

of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and section 2 in 

exchange for the dismissal of the four additional counts he faced. Artfitch later moved to 

withdraw his plea. He asserted his innocence and contended that his appointed counsel

had forced him to plead guilty. After a hearing in which Artfitch and his former attorney 

both testified, the District Court denied the motion on September 19, 2011.

Artfitch faced a statutory maximum term of 120 months. Under the terms of his 

plea agreement, Artfitch waived his right to challenge a sentence that fell within the 

agreed-upon range of the advisory United States Sentencing Guidelines (“Guidelines”). 

In the initial plea agreement, the parties agreed to an offense level of thirty, which carried 

a sentence that ranged from ninety-seven months of imprisonment to terms that exceeded 

the statutory maximum for Artfitch’s crime. At sentencing, the District Court concluded 

that Artfitch had abrogated the plea agreement. The court found that, by his testimony in 

connection with the motion to withdraw his guilty plea, Artfitch had sacrificed his 

downward adjustment for acceptance of responsibility and had obstructed justice, 
3

resulting in a two-point upward adjustment. The court thus determined that the total 

offense level was thirty-four and the advisory Guidelines range was 151 to 188 months of 

imprisonment. On November 28, 2011, the District Court sentenced Artfitch to ninetyseven months of imprisonment followed by five years of supervised release. 

Artfitch filed a pro se notice of appeal.1 His appointed counsel has moved to 

withdraw. 

II.2

Counsel may move to withdraw from representation if, after a thorough

examination of the District Court record, he or she is “persuaded that the appeal presents 

no issue of even arguable merit . . . .” 3d Cir. L.A.R. 109.2(a); see also Anders, 386 U.S. 

at 744 (“[I]f 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.”). 

To evaluate an Anders motion to withdraw, we ask: (1) whether counsel has thoroughly 

examined the record for appealable issues and has explained in a brief why any such 

issues are frivolous; 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). If “the 

 

1

 Artfitch’s notice of appeal was untimely. The sentencing order was entered on 

November 28, 2011. Artfitch had fourteen days, or until December 12, 2011, to file a 

notice of appeal. Fed. R. App. P. 4(b)(1). Artfitch signed his notice of appeal on January 

23, 2012; it was entered on January 26, 2012. However, failure to comply with Rule

4(b)(1)’s 14-day rule will not deprive this Court of jurisdiction. See Virgin Islands v. 

Martinez, 620 F.3d 321, 328 (3d Cir. 2010). Because the Government has not pursued 

the issue of timeliness before this Court, we will therefore consider the merits of 

Artfitch’s appeal. 

 

2

The District Court had jurisdiction under 18 U.S.C. § 3231. This Court exercises 

jurisdiction pursuant to 28 U.S.C. § 1291. 
4

Anders brief initially appears adequate on its face,” the second step of our inquiry is 

“guided . . . by the Anders brief itself.” Id. at 301 (quotation marks omitted). 

Artfitch’s counsel has searched the record and identified two potential areas for 

review: whether the District Court erred when it denied Artfitch’s motion to withdraw 

his guilty plea and whether Artfitch’s sentence was unreasonable. Artfitch’s attorney 

analyzed the denial of the motion to withdraw under Federal Rule of Criminal Procedure

11 and United States v. Jones, 336 F.3d 245 (3d Cir. 2003), and found no error. 

Artfitch’s attorney similarly found no error with respect to Artfitch’s sentence, which was 

lower than the statutory maximum and fell on the lowest end of the contemplated

Guidelines range in the plea agreement. Artfitch’s counsel concluded that the record 

presented no non-frivolous issue for review. 

We agree. We are satisfied that counsel has searched the record, identified 

potentially appealable issues, and adequately explained why those issues are frivolous. 

Our own review of the record confirms that the District Court's conclusion that Artfitch 

was not entitled to withdraw his plea under Jones was reasonable given the credible 

testimony of his attorney and the findings of two forensic computer experts. We also 

conclude that a sentence of ninety-seven months, a sentence twenty-three months less 

than the statutory maximum and within the contemplated range of a plea agreement that 

Artfitch later abrogated, was not unreasonable. There are no appealable issues of merit. 

III.

For the foregoing reasons, we will grant counsel’s motion to withdraw and affirm 

the judgment of conviction and sentence.