2003 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
10-23-2003 

# U S A v . S ch a effe r P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 02-1291

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w . v i l l a no va . e du/thir dc ir c uit_2003/192NOT PRE CEDENT IAL

UN ITED STA TES CO UR T O F A PPE AL S FO R T HE TH IRD CIR CU IT

No. 02-1291

UNITED S TATES OF AMERI CA

v. KEITH S CHAEFFER,

Appellant

On A ppeal from the Un ited States District Co urt for E astern Distric t of P enns ylvania (D.C. No. 01-cr -00093-8) Distric t Judg e: Ho n. Stew art D alzell
Submitte d Under Third Circ uit LAR 34.1(a)

October 14, 2003 Before: SLOVITER, ROTH, and CHERTO FF , Circu it Judges

(Fil ed October 23, 2003)

OPINI ON OF THE COURT2

SL OV ITE R, Circuit

Judge
. Keith Schaeffer

pled guil ty to thr ee counts of a 32-count i ndictment

returned against him a nd his eight co -defend ants. The co unts to w hich Sch aeffer pled guilty were (1) conspiracy to operate a “chop shop” and t o remove and alter Vehicl e Identi fication Numbers (VINs) and to poss ess vehi cles wit h alte red VINs with intent to s ell, in viol ation of 1 8 U. S. C. § 371 (Co unt 1) , ( 2) il le gal lyal te ri ng a nd r emov al of aVIN fr om a motorcy cle and ai ding and abetting, in viol ation of 18 U.S.C. §§ 511 and 2 ( Count 2), a nd (3) poss ession of

motorcy cles wit

h alte red VINs with the intent to sel l and ai ding and abe tting , in v iolat ion of 1 8 U .S.C . § 23 21 a nd 2 (Co unt 18)
. Schaeffer entered into a written plea agr eement that gave the Government t he discr etion to make whatever sentencing re commendation i t deemed appropriate and gave it t he right to comment on the evidence and c ircumst ances of the case and t o bring t o the court’ s att ention a ll fa cts r elevant to sent encing. Schaeffer and t he Government entered into a number

of sti pulati ons under the Sentenci ng Guideline Manual, effective November 1, 1998, which i ncluded a st ipulat ion that Schaeffer’ s base offens e levelwas 8; the ret ail va lue of the motor vehi cles and parts e xceeded $70,000 but was less t

han $120,000, t

hereby increa sing Schaeffe r’s adj usted offens e levelby si x; the l oss was caused in f

urther ance of the cr

iminal acti vity

jointly undertake n by Schaeff er and his coconspir ators and was within t he scope of the defendant’ s agreement , and the amount of the los s was reasonabl y for eseeabl e to Schaeffer in connection with t

he conspir acy; and3

his gui deline range shoul d be calcul ated base d on this amount pursuant to Guideli ne secti on 1B1.3. The parti es als o sti pulate d that Scha effer was in t he busines s of recei ving and sell ing st olen proper

ty , which i ncreases the adj usted offens e levelby two. However, he was given credi t for ac ceptance of responsibi lit y which ent

itl ed him to a two-level redu ction. B ecau se he had a ssisted a utho rities in the inves tigation and p rosec ution o f his own misconduct, Schaeffer was gi ven an additional one -leveldownward adjustment. The Government had not undertaken t o file a § 5K1.1 motion, and did not do s o. The District Court accepted the pre sentence investigati on report (PSI). Schaeffer was sentenced to 22 months’ i mprisonment, which was within t he appli cable gui deline range of 18 t o 24 months. Counsel for Schae ffer has fi led a bri ef pursuant to An ders v . Califo rnia , 386 U. S. 738 (19 67). Un der And ers , if c ounsel i s convinced a fter c onscientious i nvesti gation t hat the appealis frivolous , counselmay properly ask to wit hdraw while fi ling a brief re ferri ng to an ything in th e rec ord that m igh t arg uab ly sup por t the a ppe al. See id. at 74 1-4 2, 74 4. To satis fy t

he And ers requir ements, appell ant’s counsel must “sati sfy the court

that he or she h as tho roug hly scou red the record in sear ch of appe alable issues,” and th en “e xplain why the i ssues ar e frivol ous.” Un ited Sta tes v. M arvin , 211 F.3d 778, 780 (3d Cir. 200 0). In thi s case, counsel has concluded that the re are not properl y pr esented a nd preser ved issue s on which he could reasonably base an argument

to secur e meaningful4

appe llate revie w a nd/o r relief f or Sc haef fer. H e note s that S chae ffer e ssentia lly asserts three c laims f or ap peal: th at he sh ould receiv e a red uction for b eing a mino r particip ant in the conspi racy ; that

he should be ent

itl ed to a § 5K1.1 moti on for reduction of sentence because he cooper ated with the Pennsy lvania State Pol ice; and that

the amount of t

he restitution for which he should be hel d responsi ble is one-fourt h of the amount i mposed by the co urt. As noted in t

he And ers brief, Schaeffer’ s counsel did not fi le an obj ecti on to the PSI nor did he r aise any issue regarding t

he appli cable se ntenci ng guideli nes. Counsel explai ns why the issues that Scha effer ass erts would not be pers uasive. Counsel has therefore fu lfilled his obligation und er And ers to asse rt the rele vant iss ues a nd ex plain h is reasons why theyare not pe rsuasi ve. Schae ffer, as autho rized unde r And ers , has fi led a pro se brief to be co nside red in additi on to that

file d by couns el. After Schaeffer recei ved the Government brief, Sch aeff er filed a resp onsiv e brief in w hich h e w ithdrew seve ral of th e argu men ts raised in his initial pro se brief but em phasizes fo ur argum ents. Cou nsel’s brief and Schae ffer’s two briefs , taken together, are suffici ent to gui de our revi ew of the recor d. In Schaeffer ’s res ponsive brief, he contends f irst that t he amount of res tit

ution t hat the court ordered hi m to pay s hould be divi ded equall y between him and his codefendants who participated i n the the ft of the five motor cycl es for which he was indicted. We find thi s argument unper suasive
.5

The Distri ct Court i mposed a direc tion t hat Schaeffer

pay r esti tuti on in the a mount of $ 40,6 95 b eca use Sch aef fer w as in vol ved in th e the ft of five sep arate mo torc ycles. Although he ple d guilt

y onl y t o charges for

two incide nts of motor cycl e theft , we have held that a dis tri ct court may hold e ach co-conspi rator joint lyand several ly liabl e for the full a mount of the l oss in or der to permit vi ctims to recover l osses for all or some of the def end ants . See United States v. Diaz , 245 F .3d 29 4, 312 (3d C ir. 2001 ); United States v. Hunter , 52 F.3d 489, 494-95 (3d Cir. 1995). The value of the five motorcycles in t he list present ed to the Distri ct Court totale d $40,695. Alt hough the Dist

rict Court did not expressl y st ate that it s restitution order as to Schaef

fer was based on i ts i mpositi on of joint and seve ral liability , it is evident that it was becau se the PS I, which the C ourt adopted, as well as Schaeffer’ s guil ty plea agr eement st ated that the fraud los s was caused in furtheranc e of jointly undertaken criminal activity by Schaeffer a nd his co-c onspirators and was reasonabl y for eseeabl e. Nonethel ess, as we are remandi ng, we will direct the D ist ric t C ou rt to m ak e e xp lic it it s in ten tio n w ith re sp ec t to jo in t an d s ev er al l iab ilit y. Next, Schaeffer argues in his pro se brief th at the D istrict Co urt com mitted plain
er ro r b y fa ilin g t o f in d t ha t h is p rio r o ff en se s o f A ug us t 1 99 7 w er e r ela ted . E ss en tia lly, this argument i s that

the PSI i ncorrectly assess ed three crimina l his torypoints for his prior offenses des cribed i n ¶¶ 37, 38 and 39 of t he PSI. Schaeff

er cla ims that

these offe nses stem f rom the sam e arres t and th erefo re they sh ould have been assess ed on ly one po int, not thr ee. Ini tial ly the Government ar gued that there was no er

ror becaus e under our6

precedent

in United States v. Hall man , 23 F.3d 821, 824-25 (3d Cir . 1994), prior sentences a re by definition unrelated for purpo ses of § 4 A1.2 if the offense s were separated by an i nterveni ng arres t. The Government concedes, after

examining t

he crimina l fil es for these cases in Berks County , that the of fenses were not

separated by intervening arrests a s the PSI i ndicat es. There fore, Scha effer i s corre ct in hi s argument that he should be as sessed onl y one, not thr ee, criminal hist ory points . The Government argu es that th is wo uld n ot cha nge S chae ffer’s crimin al history ca tegory be caus e he w ould remain in crim inal history category III. However, Schaeffer argues that his criminal hist ory category would i ndeed change because he was ass igned one poi nt toward hi s cri minal hi story for haras sment when he should not

have been. Schae ffer’s theoryis that hara ssment i s a summary offense which carri es onlya $300 fine r ather t han any pr obation or

incarc erati on. The Government responds t

hat under § 4A1.2( c) of the Sentenci ng Guideline s, al l sent ences for misdemeanors and pe tty offenses ar e to be count ed, with the exception of certain l ist ed offe nses “ and o ffen ses sim ilar to the m.” T he of fens e of h arassm ent is no t specif ically lis ted as one of

the except

ions. Thus, the questi on is whether it i s “simi lar” to one of the lis ted exceptions. We note that t his court in United S tates v. Elmore , 108 F.3d 23 (3d C ir. 1997), found t

hat hara ssment (unde r Pennsy lvania law) was not si milar to the li sted offe nse o f diso rderly con duct. The G overnment argues that the crimes that ar e on the list are not directed against7

other p erson s or crim es of violen ce, suc h as th e crim e of d isorde rly condu ct, or pu blic order off enses. It therefore arg ues that the D istrict Court properly coun ted Scha effer’s harassment

offense in c alcul ating hi s cri minal hi story . We belie ve that the is sue is not

as clear cut as t he Government asser

ts. Some of the li sted offens es could be directe d at other per sons, s uch as res isting arr est or certa in motor vehi cle vi olati ons. The Dist rict Court did not

consider this issue be cause Schaeffer pled guil ty . We belie ve that this issue should be cons idered i n the fi rst i nstance by the Dist rict Court, whic h can, i f appropri ate,
re vi se Sc ha ef fe r’s se nt en ce ac co rd in gl y. Finall y, Schaeffer cl aims inef fecti ve assi stance of

counsel. As this cour

t has st ated numerous ti mes, we general ly do not hear c laims of i neffecti ve assi stance of counsel on dire ct ap pea l as th e rec ord on t hat is sue is ord inar ily inco mp lete. See United States v. Thornton , 327 F.3d 268, 271 (3d Cir. 200 3). Accordingly , for t

he reasons set forth above, we will affi rm the judgment of conviction but wil l remand this matter to t he District Court

for it s reconsi derati on of the judgm ent of sen tence. W e offer n o opinion on the latter.

TO THE C LERK:

Please fi le the foregoing opi nion.
/s/ Dolores K . Sloviter Circuit Judge