2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-21-2012

USA v. Kevin Jackson

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-1605

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Recommended Citation

"USA v. Kevin Jackson" (2012). 2012 Decisions. Paper 398.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 12-1605

UNITED STATES OF AMERICA

v.

KEVIN JACKSON,

Appellant

On Appeal from the United States District Court

for the District of Delaware

(D.C. Criminal Action No. 1:11-cr-00054-001)

District Judge: Honorable Richard G. Andrews

_______________

Submitted Under Third Circuit LAR 34.1(a)

September 21, 2012

_______________

Before: AMBRO, GREENAWAY JR., and O’MALLEY*

,Circuit Judges

(Opinion filed: September 21, 2012)

OPINION OF THE COURT

 * Honorable Kathleen M. O’Malley, United States Court of Appeals for the Federal 

Circuit, sitting by designation.
2

O’MALLEY, Circuit Judge

Kevin Jackson (“Jackson”) pled guilty to one count of unlawful possession of a 

firearm by a felon in violation of 18 U.S.C. § 922(g)(1). The District Court sentenced 

Jackson to thirty-seven months of imprisonment and three years of supervised release. 

Jackson appeals his sentence. His appointed counsel now moves to withdraw from the

case under Anders v. California, 386 U.S. 738 (1967), and Third Circuit Local Appellate 

Rule 109.2(a), asserting that all potential grounds for appeal are frivolous. Jackson has 

filed no pro se brief in response to counsel’s motion. For the reasons below, we grant 

counsel’s motion to withdraw and affirm Jackson’s sentence.1

I. BACKGROUND

Since we write primarily for the parties, we recite only the facts necessary to our 

decision.

On February 26, 2011, police officers approached Jackson while he was standing 

on a street corner in a high-crime area of Wilmington, Delaware. Jackson ran away. The 

police officers chased him and saw Jackson pull a fully loaded .45 caliber revolver from 

his waistband and drop it on the street. To stop him, the police officers tasered Jackson, 

severely injuring him in the process. Jackson fell into a coma for four days and sustained 

a broken nose, a fractured eye socket, and moderate disability due to brain injury. At the 

hospital, police officers found PCP on Jackson’s clothes.

 1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 

28 U.S.C. §§ 1291 and 3742.
3

On May 24, 2011, the Grand Jury for the District of Delaware returned a onecount indictment against Jackson charging him with possession of a firearm by a felon in 

violation of 18 U.S.C. § 922(g)(1). Jackson pled guilty to this charge on October 20, 

2011. The District Court sentenced Jackson on February 23, 2012. At sentencing, the 

District Court reviewed Jackson’s Presentence Investigation Report (“PSR”), adopted its 

findings of fact, and acknowledged the Sentencing Guideline calculation in the report. 

The PSR calculated an offense level of fifteen and placed Jackson in a criminal history 

category of four, making the Sentencing Guideline range for Jackson thirty to thirtyseven months, with one to three years of supervised release, and a fine range of $4,000 to 

$40,000. Jackson did not object to the PSR, nor did he move for departure. Jackson did 

request a downward variance to twenty-four months.

The District Court made its sentencing determination on the record and, taking the 

thirty to thirty-seven month range as a starting point, considered the relevant factors set 

out in 18 U.S.C. § 3553(a). The District Court considered Jackson’s drug addiction, his 

troubled childhood, the reason he carried a gun, the injuries he sustained during his arrest, 

and his prior sentence in a Delaware State court for a similar crime—possession of a 

deadly weapon by a person prohibited. Taking all this into account, the District Court 

sentenced Jackson to thirty-seven months of imprisonment, which the District Court 

found was a reasonable and appropriate sentence.

Jackson appealed his sentence to this Court on February 29, 2012.
4

II. DISCUSSION

In Anders, the Supreme Court outlined the process for an attorney to withdraw 

from a case in which the indigent criminal defendant she represents wishes to pursue a 

meritless appeal. If counsel finds the case to be “wholly frivolous, after a conscientious 

examination of it,” she should seek permission to withdraw. Id. at 744. “The request 

must, however, be accompanied by a brief referring to anything in the record that might 

arguably support the appeal,” the so-called Anders brief. Id. The appellate court must

then determine, “after a full examination of all the proceedings,” whether counsel’s 

assertion of a meritless appeal is correct. Id. If it is, the court may grant counsel’s 

request to withdraw and dismiss the appeal. 

The Third Circuit has embraced the Supreme Court’s guidelines in its Local 

Appellate Rules:

Id.

Where, upon review of the district court record, counsel is persuaded that the 

appeal presents no issue of even arguable merit, counsel may file a motion to 

withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738 

(1967), which must be served upon the appellant and the United States. The 

United States must file a brief in response. Appellant may also file a brief in 

response pro se. After all briefs have been filed, the clerk will refer the case to a 

merits panel. If the panel agrees that the appeal is without merit, it will grant 

counsel’s Anders

3d Cir. L.A.R. 109.2(a). Our inquiry on this motion is thus “twofold: (1) whether 

counsel adequately fulfilled the rule’s requirements; and (2) whether an independent 

review of the record presents any nonfrivolous issues.” 

motion, and dispose of the appeal without appointing new 

counsel.

United States v. Youla, 241 F.3d 

296, 300 (3d. Cir. 2001).
5

The first question often turns on the adequacy of counsel’s Anders brief. To fulfill 

the requirements of Local Appellate Rule 109.2(a), the Anders brief must (1) “satisfy the 

court that counsel has thoroughly examined the record in search of appealable issues” and 

(2) “explain why the issues are frivolous.” Youla, 241 F.3d at 300. While counsel must 

examine the record conscientiously, she need not raise and refute every possible claim. 

See id

To perform our independent review of the record, we must determine whether “the 

appeal lacks any basis in law or fact.” 

.

McCoy v. Court of Appeals of Wis., 486 U.S. 429, 

438 n.10 (1988). Whether an issue is frivolous is informed by the standard of review for 

each potential claim raised. See United States v. Schuh, 289 F.3d 968, 974-76 (7th Cir. 

2002). We need not scour the record on our review. “Where the Anders brief initially 

appears adequate on its face, the proper course ‘is for the appellate court to be guided in 

reviewing the record by the Anders brief itself.’” Youla, 241 F.3d at 301 (quoting United 

States v. Wagner, 103 F.3d 551 (7th Cir. 1996)). If the Anders brief is inadequate, we 

may seek guidance on potential issues for appeal from defendant’s pro se brief or other 

court filings. See id. Regardless of the adequacy of the Anders brief, we may affirm the 

District Court without appointing new counsel if the frivolousness of the appeal is patent. 

See United States v. Coleman

Jackson’s counsel identified only one potential issue for appeal in her 

, 575 F.3d 316, 321 (3d Cir. 2009).

Anders

brief: whether the District Court erred or was unreasonable in imposing its sentence. 

Having reviewed the Anders brief, we are satisfied that counsel has conscientiously 

examined the record. Accordingly, we limit our independent review of the record to the 
6

reasonableness of the District Court’s sentence. We agree with counsel that this issue 

would be frivolous if raised.

We review a District Court’s sentencing decision for procedural and substantive 

reasonableness under an abuse of discretion standard. See United States v. Maurer, 639 

F.3d 72, 77 (3d Cir. 2011). When imposing a criminal sentence, the district court must 

follow a three-step procedure. It must: (1) calculate the applicable Guidelines range; (2) 

formally rule on any departure motions and explain its rulings on such motions; and (3) 

exercise discretion in applying any relevant factors set forth in 18 U.S.C. § 3553(a). 

United States v. Gunter

Jackson’s sentence is also substantively reasonable. When determining the 

sentence, the District Court considered, among other things, Jackson’s prior three-year 

sentence in a Delaware state court for essentially the same offense—possession of a 

deadly weapon by a person prohibited. To promote respect for the law, the District Court 

felt its sentence could be no shorter than the three-year state court sentence. The District 

Court also considered Jackson’s history and characteristics, including his traumatic 

childhood and the injuries he sustained during his arrest; the Court found that neither 

warranted a shorter sentence. It was persuaded instead by Jackson’s status as a habitual 

criminal under Delaware law. And, since he fled from police, the Court felt the taser 

, 462 F.3d 237, 247 (3d Cir. 2006). The District Court did just 

that when sentencing Jackson. It calculated Jackson’s sentencing range as thirty to thirtyseven months without objection, determined that there were no motions for departure, 

and considered the relevant factors set out in 18 U.S.C. § 3553(a) when ruling on 

Jackson’s request for a variance. The sentence was procedurally sound.
7

injuries were Jackson’s own fault. We find these points persuasive as well, and find that 

they reflect the reasonableness of the District Court’s sentence, which was reached 

following proper procedure and was within the applicable Guidelines range.

Jackson’s counsel adequately fulfilled the requirements of Anders

III. CONCLUSION

and Third 

Circuit Local Appellate Rule 109.2(a) when she filed her motion to withdraw and 

supporting brief. In her brief, counsel identified no nonfrivolous issue for appeal. Our 

independent review of the record likewise reveals no such issue. We thus agree with 

defense counsel that any appeal raised in this case would be frivolous.

For the foregoing reasons, we grant counsel’s motion and affirm Jackson’s 

sentence.