2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-8-2014

USA v. Maurice Kinard

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-2197

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Recommended Citation

"USA v. Maurice Kinard" (2014). 2014 Decisions. Paper 382.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________

No. 13-2197

_________

UNITED STATES OF AMERICA

v.

MAURICE KINARD, a/k/a “Audre Hill”,

Appellant

________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-12-cr-00493-001)

District Judge: Honorable Stanley R. Chesler

_______

Submitted Under Third Circuit LAR 34.1(a)

April 7, 2014

Before: HARDIMAN, SLOVITER, and BARRY, Circuit Judges

(Filed: April 8, 2014) 

______________

O P I N I O N

_______________

Sloviter, Circuit Judge

Appellant Maurice Kinard pled guilty to one count of conspiracy to possess with 

intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 
2

(b)(1)(B) and one count of possessing a firearm despite having a felony conviction in 

violation of 18 U.S.C. § 922(g)(1). As part of the plea agreement, Kinard agreed to 

waive his right to appeal, with the exception that he reserved his right to challenge the 

District Court’s calculation of his criminal history category. The District Court sentenced 

him to 108 months imprisonment for each count, to be served concurrently. Kinard now 

appeals the sentence. Kinard’s defense counsel seek to withdraw from their 

representation pursuant to Anders v. California, 386 U.S. 738 (1967), and Third Circuit 

L.A.R. 109.2(a). Kinard’s counsel explains that any possible challenge to the sentence 

would fall within the appellate waiver, except the challenge to the criminal history 

calculation, which is frivolous. We will grant the motion of Kinard’s counsel to 

withdraw, dismiss Kinard’s appeal for failure to raise any non-frivolous issues, and 

affirm the sentence imposed by the District Court.1

I.

On March 11, 2010, deputies with the United States Marshals Service (USMS) in

New Jersey learned that Kinard, a fugitive wanted by the New Jersey Department of 

Corrections, was in Linden, New Jersey, conducting a drug transaction. At 

approximately 3:00 pm that day, officers observed Kinard execute a drug transaction with 

Jared Robinson and Rojean Morgan, and intercepted the men. When officers stopped 

Kinard, he initially identified himself as “Audre Hill,” a member of the New York Police 

 1 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This court has 

jurisdiction over the final judgment of the District Court pursuant to 28 U.S.C. § 1291, 

and jurisdiction to review a sentence imposed by the District Court pursuant to 18 U.S.C. 

§ 3742.
3

Department. However, as officers attempted to verify his identification, they observed 

him throwing white powder out of the vehicle which he was driving and apprehended 

him. The officers recovered 986 grams of cocaine from Robinson and 0.193 grams of 

cocaine in the powder Kinard threw out of his window. They also found a .38 caliber 

handgun in Kinard’s automobile. After his arrest, Robinson stated to the police that he 

accepted a shipment of drugs via FedEx at his mother’s house, and accompanied Morgan, 

who planned to sell the drugs to Kinard.

On July 19, 2011, the United States Attorney and Kinard entered into a plea 

agreement stipulating that Kinard would plead guilty to one count of conspiracy to 

possess more than 500 grams but less than 2 kilograms of cocaine, and one count of 

possession of a firearm by a felon. The plea agreement stipulated that neither party 

would argue for a sentence outside the Sentencing Guidelines range. The Probation 

Office calculated a Guideline sentence range of 100 to 125 months imprisonment. This 

range reflects an assessment of twelve points for criminal history, including three points 

each for prior sentences imposed for credit card fraud and bail jumping. These sentences 

were imposed after Kinard pled guilty to charges of credit card fraud and bail jumping in 

2006. He had initially been arrested for the credit card fraud in 2005, but had failed to 

show up for a required court hearing and was re-arrested in 2006, at which time he was 

charged for both the credit card fraud and skipping bail. 

At the sentencing hearing for this case, Kinard’s counsel argued that the bail 

jumping sentence should have been grouped with the credit card fraud sentence because 

Kinard served the sentences concurrently. The District Court disagreed that the prior 
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sentences should be grouped, because they were imposed for offenses that were separated 

by an intervening arrest. The court sentenced him to 108 months on each count, to be 

served concurrently, plus five years of supervised release.

II.

In reviewing counsel’s motion to withdraw under Anders v. California, 386 U.S. 

738, we engage in a two-part inquiry: (1) whether counsel adequately fulfilled the 

requirements of Third Circuit L.A.R. 109.2(a); and (2) whether an independent review of 

the record presents any non-frivolous issues. See United States v. Youla, 241 F.3d 296, 

300 (3d Cir. 2001). However, we are not required to engage in a “complete scouring” of 

the record to identify issues for the defendant. See id. at 301. When the Anders brief 

appears adequate on its face, we are guided in reviewing the record by the brief itself. Id.

An Anders brief is adequate when it demonstrates that counsel thoroughly 

examined the record in search of appealable issues but did not find any that would not be 

frivolous. Id. (citing United States v. Marvin, 211 F.3d 778, 779 (3d Cir. 2000)); see 

Third Circuit L.A.R. 109.2(a) (an Anders motion may be filed only when “trial counsel is 

persuaded that the appeal presents no issue of even arguable merit . . .”). 

Kinard waived his right to file an appeal or collateral attack on any sentence that 

fell within or below the applicable guideline range, with the sole exception that he 

reserved the right to challenge the court’s determination of his criminal history category. 

When the government invokes an appellate waiver, we must decline to exercise 

jurisdiction over the appeal when: (1) the defendant knowingly and voluntarily agreed to 

the waiver; and (2) the issues on appeal fall within the scope of the waiver, except when 
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doing so would work a miscarriage of justice. See United States v. Saferstein, 673 F.3d 

237, 241-42 (3d Cir. 2012) (citing United States v. Corso, 549 F.3d 921, 926 (3d Cir. 

2008)). 

The waiver here is clear and unambiguous. Kinard “voluntarily waive[d], the right 

to file any appeal . . . which challenges the sentence imposed by the sentencing court if 

that sentence falls within or below the Guidelines range that results from a total 

Guidelines offense level of 25.” App. at 30. The sentence of 108 months falls within the 

range of 100 to 125 months specified under the Guidelines for an offense level of 25 with 

a criminal history category of V (10-12 criminal history points). U.S.S.G. § 5A. 

Moreover, a careful review of the plea colloquy shows that the District Court clearly 

conveyed to Kinard that apart from his right to appeal the criminal history calculation he 

would “never be able to attack or challenge [his] conviction or the sentence in this case in 

any way, shape or form.” App. at 45. Kinard stated that he understood this provision of 

the plea agreement, having discussed it with his defense attorney. Finally, as is evident 

from the plea colloquy and Kinard’s criminal history, Kinard is not unfamiliar with the 

process of a plea hearing, and he does not now claim that he did not understand the terms 

of the appellate waiver. Given these facts, there is adequate justification for defense 

counsel’s assertion in their Anders brief that “[b]ased on [their] review, Mr. Kinard’s 

waiver of appeal was knowing and voluntary . . . .” Appellant’s Br. at 13. 

Notwithstanding an effective appellate waiver, this court will not enforce a waiver 

if doing so would work a miscarriage of justice. See United States v. Jackson, 523 F.3d 

234, 242 (3d Cir. 2008). Whether enforcing a waiver in the face of an error would work 
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a miscarriage of justice depends on the “clarity of the error, its gravity, its character (e.g., 

whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), the 

impact of the error on the defendant, the impact of correcting the error on the 

government, and the extent to which the defendant acquiesced in the result.” Id. at 243 

(quoting United States v. Teeter, 257 F.3d 14, 26 (1st Cir. 2001)). Because the District 

Court committed no error in computing Kinard’s sentence, see infra, defense counsel is 

justified in asserting in their Anders brief that “none of the exceptions to the waiver [are] 

implicated by Mr. Kinard’s sentence.” Appellant’s Br. at 13.

The appellate waiver being effective, Kinard’s only viable basis for appeal is the 

challenge to the District Court’s computation of his criminal history category, which is 

explicitly exempt from the waiver. The essence of the objection is that Kinard’s 

convictions in 2006 for credit card fraud and bail jumping should have been counted 

together for a total of three criminal history points, instead of separately for a total of six 

criminal history points. Under this alternate computation, Kinard’s criminal history 

category would have been IV rather than V, resulting in a sentencing range of 84-105 

months. U.S.S.G. §5A. However, this alternate computation is not tenable, as defense 

counsel’s Anders brief adequately explains. Appellant’s Br. at 14-16. 

The Guidelines instruct that “[p]rior sentences always are counted separately if the 

sentences were imposed for offenses that were separated by an intervening arrest . . . . 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 (B) the 

sentences were imposed on the same day.” U.S.S.G. § 4A1.2(a)(2). While Kinard pled 
7

guilty to the credit card fraud and the bail jumping at the same time after being rearrested in August 2006, and was sentenced at the same time, the offenses themselves 

were separated by Kinard’s initial arrest for the credit card fraud, before he skipped bail

and before he was re-arrested. Because the credit card fraud and the bail jumping were 

separated by an intervening arrest, the District Court properly counted them separately.

In summary, defense counsel’s Anders brief convincingly demonstrates that 

counsel thoroughly considered the possible avenues of appeal, given the limitations on 

appeal contained in the valid appellate waiver. Furthermore, the only avenue of appeal 

allowed by the appellate waiver is without merit, because the District Court properly 

counted Kinard’s prior sentences separately according to the plain text of the Guidelines. 

III.

For the foregoing reasons, we hereby grant defense counsel’s motion to withdraw, 

dismiss Kinard’s appeal for failing to raise any non-frivolous issues, and affirm the 

sentence imposed by the District Court.