2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-20-2011

USA v. Erik Peterson

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1343

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2011

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2011 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Erik Peterson" (2011). 2011 Decisions. Paper 505.

http://digitalcommons.law.villanova.edu/thirdcircuit_2011/505
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 11-1343

____________

UNITED STATES OF AMERICA

v.

ERIK ANTHONY PETERSON,

 Appellant

____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 96-cr-00002-001)

District Judge: Honorable Sylvia H. Rambo

____________

Submitted Under Third Circuit LAR 34.1(a)

Date September 20, 2011

Before: FISHER, HARDIMAN and GREENAWAY, JR., Circuit Judges.

(Filed: September 20, 2011)

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

Erik Anthony Peterson appeals the District Court‘s revocation of his supervised 

release and judgment of sentence. His counsel has moved to withdraw pursuant to 

Anders v. California, 386 U.S. 738 (1967), and Peterson has not submitted a pro se brief. 
2

Because the issues presented in this appeal lack legal merit, we will affirm the judgment 

of the District Court and grant counsel‘s motion.

I

Because we write for the parties, we provide only a brief recitation of the facts and 

procedural history.

In 1996, Peterson pleaded guilty to two counts of bank robbery in violation of 18 

U.S.C. § 2113. The District Court sentenced him to ten years in prison followed by three 

years of supervised release.

In 2008 and 2009, while still on supervised release, Peterson was charged with a 

congeries of new state crimes including theft by unlawful taking, robbery, possession of 

firearms, fleeing and eluding police, reckless endangerment, terroristic threats, simple and 

aggravated assault, unlawful use of a computer, possession of drugs with intent to deliver, 

and unlawful restraint/serious bodily injury. Several of these offenses were charged 

multiple times and in more than one county based on unrelated criminal episodes. For 

instance, in York County, Peterson attempted to use his handcuffs to strangle the 

constable who was driving him to a magistrate‘s office. The constable was able to escape 

the car, at which time Peterson drove it away. On at least five occasions in the span of a 

month, Peterson used a handgun to rob a store. During the robberies, he bound 

employees with duct tape and threatened to harm them. Since his arrest, Peterson has 

been convicted on most of the charges, and he will likely spend the rest of his life in state 
3

prison.

Having apparently decided to ignore the terms of his release that prohibit the 

commission of any new crimes, much less the commission of a full-fledged crime spree, 

Peterson also failed to meet a number of technical requirements. Specifically, Peterson 

failed to report to his probation officer that he had been arrested and questioned by law 

enforcement, failed to file a monthly report with his probation officer, and failed to notify 

his probation officer that he changed residences.

The Court held a revocation hearing on January 27, 2011. Peterson admitted to the 

technical violations as well as the Grade A violations relating to the constable-strangling 

incident. As for the remaining charges, Peterson did not contest them because doing so 

might result in statements against penal interest that could be used against him in his 

state-court appeals.

The Probation Office determined that Peterson‘s violations of the terms of his 

release warranted a sentencing range under the United States Sentencing Guidelines 

(USSG) of 33–41 months (capped by a 36-month statutory maximum) to run consecutive 

to any sentences imposed by the state courts. Peterson agreed with this calculation but 

argued for leniency on two grounds: first, that the length of his state sentences (over 50 

years) obviated the need for an additional federal sentence; and second, that any federal 

sentence would result in him having a detainer for the entirety of his state sentence, which 

would limit his access to rehabilitation programs.
4

The District Court considered Peterson‘s arguments but noted that appeals pending 

in the state courts could result in lower sentences. Ultimately the Court determined that 

―[g]iven the nature [of Peterson‘s] violations and history and characteristics of this 

offender . . . a sentence of 33 months is necessary to meet the applicable sentencing 

objectives which are to protect the public, accord adequate deterrence, and provide 

needed correctional treatment.‖

II

We exercise plenary review over an Anders motion. See Penson v. Ohio, 488 U.S. 

75, 82-83 & n.6 (1988). When counsel files a motion pursuant to Anders, we must 

determine: ―(1) whether counsel adequately fulfilled [Third Circuit Rule 109.2(a)]‘s 

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

nonfrivolous issues.‖ United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).

To meet the first prong, appointed counsel must file a motion to withdraw and 

support it with a brief that ―(1) . . . satisf[ies] the court that counsel has thoroughly 

examined the record in search of appealable issues, and (2) . . . explain[s] why the issues 

are frivolous.‖ Id. at 300. Counsel must ―refer[] to anything in the record that might 

arguably support the appeal,‖ Anders, 386 U.S. at 744, but ―need not raise and reject 

every possible claim,‖ Youla, 241 F.3d at 300. ―[A]t a minimum, he or she must meet the 

 ̳conscientious examination‘ standard set forth in Anders.‖ Id.

In this case, we are satisfied that Peterson‘s attorney has examined the record for 
5

appealable issues and has explained why there are none of arguable merit. There are only 

three issues that could potentially form the basis for an appeal: (1) the District Court‘s 

jurisdiction, (2) the sufficiency of the evidence supporting revocation of Peterson‘s 

supervised release, and (3) the reasonableness of the District Court‘s sentence. Peterson‘s 

counsel rightly argues that a challenge to any of the three would be frivolous.

First, the District Court had jurisdiction over Peterson‘s trial and sentence for the 

bank robberies, 18 U.S.C. § 3231, and the imposition and revocation of his supervised 

release, 18 U.S.C. § 3583. There was also more than enough evidence for the Court to 

find by a preponderance of the evidence, as required by § 3583(e), that Peterson had 

committed technical as well as Grade A and B violations. Notably, Peterson had already 

been convicted on several charges, and he admitted them—or at least opted not to contest 

them—at his revocation hearing. Finally, Peterson‘s sentence was procedurally and 

substantively reasonable. The District Court followed the three-step process of United 

States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006), and gave ―rational and meaningful 

consideration [to] the factors enumerated in 18 U.S.C. § 3553(a)‖ as required by United 

States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc).1 Moreover, the Court‘s 

decision to impose its sentence consecutive to Peterson‘s state-court sentences is 

consistent with USSG § 7B1.3(f) and was thus within the Court‘s sound discretion.

 

1

Section 3583(e) specifies which § 3553(a) factors a court must consider in the 

revocation of supervised release context.
6

III

We conclude that counsel adequately fulfilled the requirements of Anders, and an 

independent review of the record reveals no nonfrivolous ground for appeal. We will 

therefore affirm the District Court‘s judgment of sentence and grant counsel‘s motion to 

withdraw. Counsel is also relieved of any obligation to file a petition for writ of certiorari 

in the Supreme Court. 3D CIR. L.A.R. 109.2(b).