2013 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

4-17-2013 

# U S A v . Thom a s E l liott

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w . v i l l a no v a . e du/thir dc ir c uit_2013/979NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 12

- 2812

____________ UNITED STATES OF AMERICA

v. THOMAS ELLIOTT,

Appellant

____________ On Appeal from the United State s District Court for the Middle District of Pennsylvania (D.C. No. 11

- cr - 00295) District Judge: Honorable Yvette Kane

____________ Submitted Under Third Circuit LAR 34.1(a)

April 16, 2013 Before: AMBRO, HARDIMAN and COWEN , Circuit Judges

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(Filed: April 17, 2013 )

____________ OPINION OF THE COURT

____________ HARDIMAN, Circuit Judge

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Thomas Elliott appeals the District Court ‟ s judgment of conviction and sentence. His attorney has moved to withdraw under Anders v. California , 386 U.S. 738 (19 67). For the reasons that follow, we will grant counsel ‟ s motion to withdraw and2

affirm the District Court ‟ s judgment.
I On October 19, 2011, Elliott was indicted in the Middle District of Pennsylvania with one count of distribution and possession with in tent to distribute cocaine ba se in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The charge stemmed from three incidents in which Elliott either sold or offered to sell cocaine base to a confidential informant working for local law enforcement. E lliott eventually pleaded guilty pursuant to a plea agreement. Because of his extensive criminal history, the Presentence Report defined Elliott as a career offender under section 4B1.1(a) of the United States Sentencing Guidelines (USSG or Guidelines ). T his determination resulted in a total offense level of 29 1 and a criminal history category of VI , yielding an advisory Guidelines range of 151 to 188 months ‟ imprisonment. Prior to the sentencing hearing, Elliott filed a memorandum in which he urged the
Di strict Court to vary downward from the Guidelines range. Elliott argued that the career offender Guideline (USSG § 4B1.1) was flawed in its promulgation and development, and resulted in advisory ranges considerably greater than necessary to meet the goals of

1 Elliott‟s initial offense level was 32, see USSG § 4B1.1(b), but it was r educed by three levels for acceptance of responsibi lity pursuant to USSG § 3E1.1.3

sentencing set forth in 18 U.S.C. § 3553(a). In addition, he argued that a sentence within the Guidelines range would be greater than necessary to account for his history and characteristics and to provide just punishment for the offense. At the sent encing hearing held on June 20, 2012, Elliott renewed these assertions. Nevertheless, after reviewing Elliott ‟ s criminal history and considering the factors set forth in 18 U.S.C. § 3553(a), the District Court determined that a downward variance was inapp ropriate and sentenced Elliott to 151 months ‟ imprisonment followed by three years of supervised release. Elliott filed a timely notice of appeal. Counsel now seeks to withdraw pursuant to Anders , asserting that there are no nonfrivolous issues for appeal . Elliott has not filed a pro se brief in opposition to counsel ‟ s brief. The Government has filed a brief supporting counsel ‟ s Anders motion.
II The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231, and we have appellate jurisdiction un der 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Under Anders , we ask: (1) whether counsel adequately fulfilled the requirements of Third Circuit Local Appellate Rule 109.2(a); and (2) whether an independent review of the record presents any nonfrivolous iss ues. United States v. Coleman , 575 F.3d 316, 319 (3d Cir. 2009) (citing United States v. Youla , 241 F.3d 296, 300 (3d Cir. 2001) ).4 A To satisfy the first prong of Anders , counsel must examine the record, conclude that there are no nonfrivolous issues for review, and request permission to withdraw. Youla , 241 F.3d at 300 . Counsel must accompany his motion to withdraw with a “ brief referring to anything in the record that might arguably support the appeal. ” Anders , 386 U.S. at 744. The brief must “satisf y the court that counsel has thoroughly examined the record in search of appealable issues, and . . . explain why the issues are frivolous. ” Youla , 241 F.3d at 300. Counsel need not raise and reject every possible claim; rather, he

must “ provide[] suffic ient indicia that he thoroughly searched the record and the law in service of his client so that we might confidently consider only those objections raised. ” Id. at 301 (quoting United States v. Marvin , 211 F.3d 778, 781 (3d Cir. 2000)). In his Anders bri ef, Elliott ‟ s counsel identifies two potential issues for appeal: (1) that Elliott ‟ s guilty plea was not knowing and intelligent; and (2) that Elliott ‟ s sentence was procedurally and substantively unreasonable. Counsel then explain s why each is frivolous. With respect to the first issue, he notes that the District Court conducted a lengthy colloquy with Elliott that addressed all of the requirements set forth in Federal Rule of Criminal Procedure 11(b) for considering and accepting a guilty plea. With re spect to the second issue, he cites the District Court ‟ s thoughtful consideration of Elliott ‟ s arguments and the detailed justifications the District Court gave for imposing its5

sentence. We are satisfied that counsel has conducted an adequate examinatio n of the record and adequately explained that there are no nonfrivolous issues for appeal. See Youla , 241 F.3d at 300. Therefore, we conclude that the Anders brief is adequate.
B

“ 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. ‟” Id. at 301 (quoting United States v. Wagner , 103 F.3d 551, 553 (7 th Cir. 1996) ). We consider each issue in turn, and find both to be without merit.
1
Th e first argument is that Elliott ‟ s guilty plea was invalid. The validity of a guilty plea is governed by standards set out in Boykin v. Alabama , 395 U.S. 238 (1969), and Federal Rule of Criminal Procedure 11. To pass constitutional muster, a guilty plea must be “intelligent and voluntary ,” Boykin , 395 U.S. at 242, and the defendant must be made aware of his privilege against compulsory self

- incrimination, his right to trial by jury, and his right to confront accusers , i d. at 243 & n.5

. The District Court informed Elliott of these rights in a lengthy colloquy during the change of plea hearing on February 24, 2012, and notified him that by pleading guilty he was giving up those rights. Elliott acknowledged that he understood the consequences of pleading gu ilty and that he was6

doing so knowingly and voluntarily. Furthermore, the District Court ‟ s colloquy satisfied the requirements of Federal Rule of Criminal Procedure 11. Thus, we see no nonfrivolous issues concerning the validity of Elliott ‟ s guilty plea.
2 The second argument is that Elliott ‟ s sentence was procedurally and substantively unreasonable. We can find no basis to conclude that the District Court abused its dis cretion in sentencing Elliott. With respect to procedural reasonableness, the Distric t Court engaged in the three

step sentencing analysis we established in United States v. Gunter , 462 F.3d 237, 247 (3d Cir. 2006). Furthermore, it followed the procedures announced in Gall v. United States , 552 U.S. 38, 50

– 51 (2007), by giving meaningful consideration to the pertinent sentencing factors embodied in 18 U.S.C. § 3553(a). If a sentence is procedurally sound, it is also considered substantively reasonable

“ unless no reasonable sentencing court would have imposed the same sentence on that parti cular defendant for the reasons the district court provided. ” United States v. Tomko , 562 F.3d 558, 568 (3d Cir. 2009) (en banc). Here, the District Court cited Elliott ‟ s extensive criminal history ( sixteen prior juvenile and adult convictions, eleven of which

were for crimes involving violence or drugs), observed that Elliott had returned to drug dealing within a month of being released from a 140

- month senten ce , and found that a7

sentence within the Guidelines range would best satisfy the goals of senten cing. Finally, with respect to the arguments raised in Elliott‟s sentencing memorandum and reasserted by defense counsel during the sentencing hearing, the District Court acknowledged that it had given thoughtful consideration to those arguments, but neve rtheless concluded that a sentence within the Guidelines range was appropriate. These considerations are not unreasonable.
C Pursuant to the second prong of Anders , we have conducted an independent review of the record and find that there are no appealabl e issues of merit.
III For the foregoing reasons, we will affirm the judgment of the District Court and, in a separate order, grant counsel ‟ s motion to withdraw pursuant to Anders

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