NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-2641

_____________

UNITED STATES OF AMERICA

v.

HARON TUCKER

also known as

RONALD TUCKER 

also known as

DANIEL SMITH

 Haron Tucker,

 Appellant

______________

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. Crim. Action No. 08-cr-230-1)

District Judge: Honorable Nora Barry Fischer

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Submitted Under Third Circuit LAR 34.1(a)

December 13, 2012

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Before: GREENAWAY, JR., GREENBERG, and COWEN, Circuit Judges.

(Opinion Filed: January 24, 2013)
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OPINION

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GREENAWAY, JR., Circuit Judge.

Haron Tucker (“Tucker”) appeals the District Court’s June 10, 2011 judgment and 

sentence of 180 months of imprisonment. Tucker pled guilty to possession of a firearm 

by a convicted felon, in violation of 18 U.S.C. § 922(g). His counsel filed a brief, 

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that no nonfrivolous 

issues exist for appeal and seeking to withdraw as counsel. For the reasons set forth 

below, we will grant counsel’s motion to withdraw and affirm the judgment and sentence 

of the District Court.

We write primarily for the benefit of the parties and recount only the essential 

facts.

I. Background

While on patrol in police vehicles on June 21, 2007, City of Pittsburgh police 

officers saw a group of men, including Tucker, standing in front of a building. As the

officers approached in their vehicles, they observed Tucker backing away from the group 

while holding the right side of his waistband. When the officers exited their vehicles, 

Tucker fled and the officers pursued him. During the pursuit, Tucker took a gun from his 

waistband and threw it into some bushes. Tucker was soon apprehended and a .380 
3

millimeter Bersa automatic handgun was recovered from the bushes. 

A federal grand jury charged Tucker with possessing a firearm while being a 

convicted felon. Tucker’s counsel filed two motions: a motion to dismiss the Indictment 

on jurisdictional grounds and a motion to suppress Tucker’s post-arrest statements. 

Tucker subsequently pled guilty to possession of a firearm by a convicted felon. 

The Presentence Report (“PSR”) reflected an advisory Guideline range of 168 to 210 

months of imprisonment. However, because Tucker was also designated as an armed 

career criminal under the Armed Career Criminal Act (“ACCA”), the lower end of the

sentencing range rose to a mandatory minimum of 180 months of imprisonment. Tucker

sought a downward variance, asserting that the statutory sentencing enhancement under §

924(e) was inapplicable and that the mitigating provisions of U.S.S.G. § 4A1.2 should 

apply. The District Court rejected these arguments and sentenced Tucker to 180 months

of imprisonment.

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

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

II. Jurisdiction

“In

III. Standard of Review

Anders v. California, 386 U.S. 738, 744 (1967), the Supreme Court explained 

the general duties of a lawyer representing an indigent criminal defendant on appeal 

when the lawyer seeks leave to withdraw from continued representation on the grounds 
4

that there are no nonfrivolous issues to appeal.” United States v. Marvin, 211 F.3d 778, 

779 (3d Cir. 2000). The attorney must always “support his client’s appeal to the best of 

his ability.” Anders, 386 U.S. at 744. If, however, “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.” Id.

To withdraw, counsel must “satisfy the court that he or she has thoroughly scoured 

the record in search of appealable issues,” and “explain why the issues are frivolous.” 

 

Marvin, 211 F.3d at 779-80. Thus, this Court’s inquiry when considering a lawyer’s 

Anders brief is two-fold: we must determine “(1) whether counsel adequately fulfilled 

[Third Circuit Local Appellate Rule 109.2’s] requirements; 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). In accordance with 3d Cir. L.A.R. Rule 109.2, 

if an appeal is judged to be wholly frivolous, this Court must “grant trial counsel’s 

Anders motion, and dispose of the appeal without appointing new counsel.” United 

States v. Coleman, 575 F.3d 316, 321 (3d Cir. 2009) (quotation marks omitted).

Counsel thoroughly reviewed the record and concluded that: (1) the record 

provides no support for a motion to invalidate the guilty plea; (2) the motion to dismiss 

the indictment for lack of subject matter jurisdiction lacks merit based on Third Circuit 

III. Analysis
5

precedent; (3) the suppression motion was rendered moot by the guilty plea and, even if 

this were not the case, it lacks merit on appeal; and (4) the sentence imposed by the 

District Court was both procedurally and substantively sound. 

A criminal defendant’s guilty plea is considered valid if entered “knowing[ly], 

voluntary[ily] and intelligent[ly].” 

A. Validity of Guilty Plea

United States v. Tidwell, 521 F.3d 236, 251 (3d Cir. 

2008). To ensure that a plea is knowing and voluntary, the district court must “address 

the defendant personally in open court,” Fed. R. Crim. P. 11(c), advise defendant of the 

consequences of his or her plea, and ensure that defendant understands them. United 

States v. Schweitzer, 454 F.3d 197, 202 (3d Cir. 2006) (citing Boykin v. Alabama

To challenge the validity of his guilty plea, Tucker would have had to demonstrate 

that the requirements of Rule 11 of the Federal Rules of Criminal Procedure and the 

constitutional requirements of 

, 395 

U.S. 238 (1969) and Fed. R. Crim. P. 11(c)). 

Boykin had not been satisfied. However, having reviewed 

the plea colloquy and record, counsel found no basis for the argument that Tucker’s plea 

was unknowing, involuntary, or unintelligent. We agree with counsel’s conclusion that 

the record shows Tucker’s plea was knowingly and voluntarily made. 

Tucker moved to dismiss the Indictment for lack of federal subject matter 

jurisdiction, on the ground that the weapon described in the Indictment was never in 

B. Motion to Dismiss for Unconstitutionality of Statute
6

interstate commerce because it had been manufactured overseas and imported into 

Pennsylvania, where it remained until his arrest. Tucker argued that his conviction under 

18 U.S.C. § 922(g)(1), which prohibits the possession of a firearm “in or affecting 

commerce” by a convicted felon, was therefore an unconstitutional over-reach into intrastate affairs. Tucker relied on Supreme Court rulings in three cases which limit the 

federal government’s ability to justify legislation by the Commerce Clause: United 

States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 598 (2000);

and Jones v. United States

The motion to dismiss was terminated as moot due to Tucker’s guilty plea. 

Renewing this argument would be frivolous because this Court has held § 922(g)(1) to be

a constitutional exercise of Congress’ Commerce Clause powers, even after 

, 529 U.S. 848 (2000). 

Lopez, 

Morrison, and Jones. See United States v. Coward, 296 F.3d 176 (3d Cir. 2002). 

Coward reaffirmed the reasoning of United States v. Singletary

Proof that the possessed firearm had previously traveled in interstate commerce is

sufficient to satisfy the required nexus between possession and commerce.

, which held that

“[s]ection 922(g)(1), by its very terms, only regulates those weapons affecting interstate 

commerce by being the subject of interstate trade” and fits squarely within Congress’s 

commerce power. 268 F.3d 196, 204 (3d Cir. 2001). 

Scarborough 

v. United States. 431 U.S. 563 (1977). In this case, the interstate commerce element of 

the offense was met because, as Tucker himself asserted, the gun referenced in the 
7

Indictment had been manufactured overseas and imported into the United States. 

Counsel is correct that renewing a motion to dismiss on jurisdictional grounds has no 

merit on appeal. 

Tucker also moved to suppress statements he made to the arresting officer after 

being apprehended, arguing that they were the product of custodial interrogation elicited 

without the warnings prescribed by

C. Motion to Suppress Statements

Miranda v. Arizona

Tucker’s counsel notes that this motion was terminated as moot by Tucker’s guilty 

plea. A defendant’s unconditional, knowing and voluntary guilty plea acts as a waiver of 

non-jurisdictional defects,

, 384 U.S. 436 (1966). Tucker

maintained, in the alternative, that the coercive climate of the arrest and the experience of 

being handcuffed rendered his post-arrest statements inadmissible and subject to 

suppression. 

Washington v. Sobina, 475 F.3d 162 (3d Cir. 2007), including 

waiver of pre-trial claims that police illegally seized evidence or elicited inculpatory 

testimony without first administering Miranda warnings, Tollett v. Henderson

Even if the suppression motion had not been foreclosed from appellate review by 

the guilty plea, the motion would fail on its merits. The record shows that Tucker was 

not subject to interrogation from police at the time he made the inculpatory statements; 

, 411 U.S. 

258, 267 (1973)). The challenge to statements made while in custody was waived by the 

guilty plea and is not appealable.
8

instead, he spontaneously volunteered his reason for running from police. A motion to 

suppress his statements would, therefore, be frivolous. 

Finally, Tucker may challenge the reasonableness of the sentencing, including the 

imposition of a fifteen-year sentence under 18 U.S.C. § 924(e). 

D. Reasonableness of Sentence

In evaluating an appeal of a sentence, we review the District Court’s sentencing 

decision under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51

(2007); United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009). Procedurally, a 

district court must (1) calculate a defendant’s sentence under the Sentencing Guidelines, 

(2) formally rule on any departure motions and state on the record whether it is granting a 

departure, and (3) exercise its discretion by considering the factors set forth in 18 U.S.C. 

3553(a). See United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). If the sentence 

was procedurally reasonable, this Court considers the substantive reasonableness of the 

sentence based on the totality of the circumstances. See Tomko, 562 F.3d at 567 (citing 

Gall

At sentencing, Tucker made several objections to the PSR. Relying on 

§ 4A1.2(2)

, 552 U.S. at 51). 

1

 1 Section 4A1.2(2) provides that “[p]rior sentences always are counted separately 

if the sentences were imposed for offenses that were separated by an intervening arrest 

(i.e., the defendant is arrested for the first offense prior to committing the second 

offense). If there is no intervening arrest, prior sentences are counted separately unless 

(A) the sentences resulted from offenses contained in the same charging instrument; or 

of the Sentencing Guidelines, he argued that two prior drug offenses were 
9

related cases, consolidated for hearing, and should be treated as one for the purpose of 

computing his criminal history. Tucker also argued that these two convictions should not 

be counted separately towards the three predicate offenses required for the application of 

the ACCA. Tucker relied on the mistaken assertion that the two 2001 Pennsylvania state 

court convictions, noted at paragraphs 27 and 28 of the PSR, occurred only eight days 

apart. In fact, the crimes were separated by approximately sixteen months and were 

properly counted as individual crimes for the purpose of criminal history points. 

With respect to the ACCA, this Court has adopted the “separate episodes” test for 

the application of the statute, holding that “where the defendant receives multiple 

convictions in a single judicial proceeding ... the individual convictions may be counted 

for the purposes of sentencing enhancement so long as the criminal episodes were distinct 

in time.”2 United States v. Schoolcraft, 879 F.2d 64, 73 (3d Cir. 1989) (citing United 

States v. Towne

 

(B) the sentences were imposed on the same day. Count any prior sentence covered by 

(A) or (B) as a single sentence.”

, 870 F.2d 880, 889 (2d Cir. 1989)). Despite the fact that the two 

convictions in question were consolidated for plea and sentence, the two state court 

convictions occurred many months apart at “distinct points in time,” and were properly 

counted as separate offenses.

2 This Court went on to say that its adoption of the “separate episode test” accords 

with both the meaning of the unambiguous statutory language and the legislative intent 

underlying the ACCA. United States v. Schoolcraft, 879 F.2d 64, 74 (3d Cir. 1989). 
10

Tucker also sought a variance on fairness grounds. He maintained that the 

statutory sentencing enhancement under § 924(e) should not be applied because it overrepresents the seriousness of his criminal history. Tucker suggested that the proper 

course of action for sentencing is to apply the mitigating provisions of U.S.S.G. 

§ 4A1.2(a)(2) to the determination regarding whether he was lawfully designated as an 

Armed Career Criminal. The District Judge considered this argument but found that the 

applicability of the ACCA enhancement is determined under a separate test from that of 

the Guidelines calculation for criminal history points under § 4A1.2(a)(2). See Brown v. 

United States

Counsel is correct that § 4A1.2 neither mandates a lower sentence nor informs the 

application of the ACCA. Therefore, the District Court did not err in interpreting the 

Guidelines as independent of the statutorily prescribed minimum sentence. 

, 636 F.3d 674, 676 (2d Cir. 2011). 

See Dorsey v. 

United States

Counsel also points out that it would be frivolous to claim that the District Court 

erred in denying Tucker’s request for a downward variance because 18 U.S.C. § 3553 

specifically prohibits sentencing courts from imposing sentences below a stated statutory 

minimum, unless an explicit exception to the minimum sentence applies. 

, 132 S.Ct. 2321 (2012) (noting that maximum or minimum sentence set by 

sentencing statutes trumps the Sentencing Guidelines, and a sentencing judge must 

sentence an offender to at least the minimum prison term set forth in a statutory 

mandatory minimum).

United States v. 
11

Winebarger, 664 F.3d 388, 393 (3d Cir. 2011). See also United States v. Kellum

Prior to recognizing that a mandatory minimum sentence of 180 months was 

required, the District Court correctly calculated Tucker’s sentence under the Sentencing 

Guidelines, formally ruled on Tucker’s departure motions, stated his reasons on the 

record, and considered the factors set forth in 18 U.S.C. § 3553(a). The District Court

sentence was procedurally and substantively sound and no nonfrivolous challenge to the 

sentencing procedure exists.

, 356 

F.3d 285, 289 (3d Cir. 2004). No such exception exists in this case. 

We find that no nonfrivolous issues exist for consideration on appeal. We will 

grant counsel’s motion to withdraw, pursuant to 

VI. Conclusion

Anders, and affirm the judgment and 

sentence of the District Court. Counsel is also relieved of any obligation to file a petition 

for a writ of certiorari in the Supreme Court. See 3d Cir. L.A.R. 109.2(b).