2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-29-2002

USA v. Frazier

Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3003

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Recommended Citation

"USA v. Frazier" (2002). 2002 Decisions. Paper 458.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/458
 NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 01-3003 

 ___________ 

 UNITED STATES OF AMERICA 

 

 v. 

 TIMMY FRAZIER, 

 Appellant 

 _______________________________________________ 

 On Appeal from the United States District Court 

 for the District of New Jersey 

 D.C. Criminal No. 99-cr-00226 

 (Honorable Stephen M. Orlofsky) 

 ___________________ 

 Submitted Pursuant to Third Circuit LAR 34.1(a) 

 June 5, 2002 

 Before: SCIRICA, BARRY and WEIS, Circuit Judges 

 (Filed: July 29, 2002) 

 __________________ 

 OPINION OF THE COURT 

 __________________ 

 SCIRICA, Circuit Judge. 

 Timmy Frazier filed this pro se appeal contending he should be resentenced 

because his attorney promised he would receive a sentence below the statutory 

mandatory minimum for cooperating with the government. Defense counsel filed a 

motion to withdraw as counsel and an Anders brief, asserting that Frazier’s appeal raises 

no nonfrivolous issues. We will grant defense counsel’s request to withdraw, and affirm 

the judgment and sentence of the District Court. 

 I. 

 Frazier pled guilty to a one-count information charging him with conspiring to 

distribute and possess, with intent to distribute, more than five kilograms of cocaine, in 

violation of 21 U.S.C. 841(a)(1) and 21 U.S.C. 846. The plea agreement explicitly 

stated Frazier would plead guilty to a violation of 21 U.S.C. 846 as charged and that it 

"carrie[d] a statutory minimum of 10 years’ imprisonment." The District Court conducted 

a plea hearing in accordance with Fed. R. Crim. P. 11, and accepted Frazier’s guilty plea. 

 On July 9, 2001, the District Court held a sentencing hearing. Neither Frazier nor 

the government objected to the Pre-Sentence Report. Under the guidelines, Frazier’s 

offense level was 31 with a criminal history category of III, exposing him to a guideline 

range of 135 to 168 months’ incarceration. Although Frazier entered a non-cooperating 

plea agreement, he subsequently cooperated with the government and, in return, the 

government moved for a downward departure under U.S.S.G. 5K1.1 based upon 
Frazier’s substantial assistance. 

 The government asked the District Court to depart downward fifteen months to 

the mandatory minimum sentence of 120 months under 21 U.S.C. 841 but made clear 

that it was not requesting or authorizing "the court under 18 U.S.C. 3553(E) to impose 

a sentence . . . below the level established by the statute as the minimum mandatory 

sentence." The District Court granted the downward departure and sentenced Frazier to 

120 months’ incarceration, the lowest possible sentence under the statute. Frazier 

appeals, claiming his attorney promised him that he would receive only five to six years 

after cooperating with the government. 

 II. 

 "In Anders, the Supreme Court established guidelines for a lawyer seeking to 

withdraw from a case when the indigent criminal defendant he represents wishes to 

pursue frivolous arguments on appeal." United States v. Youla, 241 F.3d 296, 299 (3d 

Cir. 2001). The Supreme Court directed that "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." 386 U.S. at 744. The Court further instructed that 

defense counsel’s request "must . . . be accompanied by a brief referring to anything in 

the record that might arguably support the appeal." Id. When counsel submits an 

Anders brief, our inquiry is "twofold: (1) whether counsel adequately fulfilled the rule’s 

requirements; and (2) whether an independent review of the record presents any 

nonfrivolous issues." Youla, 241 F.3d at 300 (citations omitted). 

 We have stated that when preparing an Anders brief, the duties of defense counsel 

are "(1) to satisfy the court that counsel has thoroughly examined the record in search of 

appealable issues, and (2) to explain why the issues are frivolous." Id. Defense 

counsel’s brief focuses on the Rule 11 plea hearing and the District Court’s decision to 

grant the government’s 5K1.1 motion to depart downward from the applicable 

guideline range to the mandatory minimum sentence. As noted, in his pro se brief, 

Frazier contends the District Court erred because it only departed downward 15 months 

instead of departing below the mandatory statutory minimum of 10 years. 

 Defense counsel’s brief demonstrates counsel thoroughly examined the record in 

search of appealable issues and explained why the issues are frivolous. The plea 

colloquy complied with Fed. R. Crim. P. 11. The court established that Frazier 

understood his constitutional rights and the nature of the criminal charges. Upon review, 

it is clear that Frazier entered a knowing and voluntary guilty plea to a charge that carried 

a mandatory statutory minimum of 10 years. There was no question about Frazier’s 

competence or comprehension. The District Court questioned Frazier on all required and 

relevant issues related to his role in the offense, as well as his understanding of the 

proceedings. 

 The sentencing proceedings also met the requirements of Fed. R. Crim. P. 32. As 

noted, the government filed a motion for downward departure under U.S.S.G. 5K1.1 

based on Frazier’s substantial assistance. In response, Frazier’s counsel at sentencing 

requested a further downward departure below the minimum mandatory sentence. The 

District Court denied this request, correctly concluding it did not have the authority to 

depart downward "below a level established by statute as a minimum sentence so as to 

reflect a defendant’s substantial assistance" absent a motion by the government. 18 

U.S.C. 3553(e); see also Melendez v. United States, 518 U.S. 120, 125-26 (1996) ("We 

believe that 3553(e) requires a Government motion requesting or authorizing the 

district court to impose a sentence below a level established by statute as minimum 

sentence before the court may impose such a sentence.") (quotation and citation omitted). 

 Accordingly, there are no nonfrivolous arguments raised in this appeal. 

 III. 

 For the foregoing reasons, we will grant defense counsel’s request to withdraw 

and affirm the judgment and sentence of the District Court. 

TO THE CLERK: 

 Please file the foregoing opinion. 
 /s/ Anthony J. Scirica 

 Circuit Judge