2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-31-2009

USA v. Trenell Coleman

Precedential or Non-Precedential: Precedential

Docket No. 08-3155

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Recommended Citation

"USA v. Trenell Coleman" (2009). 2009 Decisions. Paper 873.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-3155

 

UNITED STATES OF AMERICA

v.

TRENELL J. COLEMAN,

 Appellant

 

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 3-02-cr-00320-003)

District Judge: Honorable Anne E. Thompson

 

Submitted Under Third Circuit LAR 34.1(a)

July 10, 2009

Before: SLOVITER, AMBRO, and JORDAN, Circuit Judges

(Filed: July 31, 2009 )

_____

Trenell J. Coleman, Pro Se

Allenwood USP

White Deer, PA l7887-0000

John M. Holliday, Esq.

Suite 207

2273 State Highway 33

Trenton, NJ 08690

Attorney for Appellant
2

George S. Leone

Samuel A. Stern

Office of United States Attorney

970 Broad Street 

Room 700

Newark, NJ 07102-0000

Attorneys for Appellee

 

OPINION OF THE COURT

 

SLOVITER, Circuit Judge.

Appellant Trenell J. Coleman was convicted by a jury of a

Hobbs Act conspiracy to commit bank robberies in violation of

18 U.S.C. § 1951 (Count 1), attempted bank robbery in violation

of 18 U.S.C. § 2113 (Count 3), two counts of use of a firearm

during the commission of a crime of violence in violation of 18

U.S.C. § 924(c) (Counts 2 and 4), and possession of a firearm by

a convicted felon in violation of 18 U.S.C. § 922(g) (Count 6). 

Coleman was then sentenced to 572 months imprisonment.

On appeal to this court, we affirmed Coleman’s

conviction but vacated his sentence and remanded for

resentencing in light of the Supreme Court’s decision in United

States v. Booker, 543 U.S. 220 (2005). Notwithstanding our

remand, we also held that the District Court properly imposed

both a seven-year mandatory-consecutive sentence on Count 2

and a twenty-five year mandatory-consecutive sentence on Count

4 because those sentences were required by the terms of §

924(c). See United States v. Goggans, F. App’x 515, 518 (3d

Cir. 2007). On remand, the District Court imposed a sentence of

444 months imprisonment.

Coleman’s counsel, who filed a timely notice of appeal,

has filed a motion to withdraw as counsel and a brief in support

of that motion pursuant to Anders v. California, 386 U.S. 738,
3

744 (1967). Coleman has filed a pro se brief in opposition to his

counsel’s Anders motion. The government has also filed a brief

supporting counsel’s Anders motion.

I.

Coleman and co-defendants Lacy Goggans, Ronald

Blackwell, and Ryan Washington conspired to rob nine banks in

New Jersey between 2000 and 2002. Coleman was armed with,

and brandished, a firearm during the robberies. The conspirators

also attempted to rob the Roma Federal Savings Bank in

Trenton, New Jersey, on April 16, 2002, which they aborted. 

During their flight, Coleman was arrested while in possession of

a firearm.

As noted above, Coleman was convicted by a jury of

conspiracy to commit bank robbery under the Hobbs Act,

attempted bank robbery, two counts of use of a firearm during a

crime of violence, and possession of a firearm by a felon. We

previously affirmed that conviction. Goggans, 257 F. App’x at

517. Thus, the only issue before us is whether the District Court

properly resentenced Coleman after we remanded the case in

light of Booker.

On remand, the District Court determined, as it had

during Coleman’s initial sentencing and as we approved in our

opinion on his first appeal, that it was required to impose a

seven-year consecutive sentence on Count 2, which involved a

violation of 18 U.S.C. § 924(c)(1)(A)(ii) for brandishing a

weapon during the bank robberies underlying the Hobbs Act

conspiracy, and a twenty-five-year consecutive sentence on

Count 4, which involved a violation of 18 U.S.C. §

924(c)(1)(C)(i) for use of a firearm during the attempted bank

robbery. The Court also concluded that it was required to

impose a ten-year consecutive sentence on Count 6 for

possession of a firearm by a felon.

On the Hobbs Act conspiracy (Count 1) and the attempted

bank robbery (Count 3), the District Court weighed the

seriousness of the offenses, Coleman’s criminal history, his role
4

in the offenses, his relative youth at the time of the offenses, his

positive post-conviction conduct, and the length of the

mandatory sentences on the weapons offenses, and determined

that concurrent sentences of sixty months imprisonment on each

count were appropriate. Thus, the Court imposed a total

sentence of 444 months imprisonment. Counsel for Coleman

filed a timely appeal.

II.

Under Anders, appellant’s counsel must “satisfy the court

that he or she has thoroughly scoured the record in search of

appealable issues” and then “explain why the issues are

frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.

2000) (citation omitted.). “The Court’s inquiry when counsel

submits an Anders brief is thus twofold: (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 nonfrivolous issues.” United States v. Youla,

241 F.3d 296, 300 (3d Cir. 2001).

Coleman’s counsel contends that there are no nonfrivolous issues for review on appeal. However, counsel limits

his discussion to the District Court’s compliance with Federal

Rule of Criminal Procedure 32, which governs the procedural

requirements for sentencing.

We are troubled by counsel’s failure to address any issue

other than the District Court’s compliance with Rule 32. First,

Coleman’s counsel does not mention the argument raised by

Coleman in his pro se brief to assure us that he has found it to

lack merit. See Marvin, 211 F.3d at 781 (rejecting Anders

motion because, inter alia, counsel failed to address issues raised

in client’s pro se brief). Further, despite the fact that this court

previously remanded Coleman’s case for resentencing,

Coleman’s counsel does not even allude to the question whether

Coleman’s new sentence is reasonable under Booker and its

progeny. Certainly not every Anders brief need include a

challenge to the reasonableness of the sentence, especially when

the pro se appellant does not raise the issue, but here it was the
5

court that raised the issue.

We emphasize that counsel need not press frivolous

arguments on appeal, but the failure to address legal challenges

raised by Coleman and the failure to fully address the very issue

for which we remanded this matter cause us to question whether

Coleman’s counsel conducted the required “conscientious

examination” of the record. Anders, 386 U.S. at 744. Thus, we

must decide whether we should appoint new counsel or take

some other step to ensure that Coleman receives adequate

representation.

We believe that our resolution of this matter is guided by

the Supreme Court’s recent instructions to this court regarding

an Anders motion in Bennett v. United States, 128 S. Ct. 2423

(2008). After Bennett was convicted of possession of crack and

powder cocaine and sentenced to 240 months imprisonment, his

counsel filed a notice of appeal and sought to withdraw from the

case pursuant to Anders. United States v. Bennett, 219 F. App’x

265, 266 (3d Cir. 2007). Bennett filed a pro se brief in which he

noted that the district court erred by imposing a recidivist

enhancement to his sentence based on a prior conviction that

remained subject to direct review; Bennett’s counsel failed to

present this argument or explain why it was frivolous. Id. at

266-67. However, even the government conceded that the

district court’s imposition of the enhancement was plain error. 

Id. Rather than order the appointment of new counsel, we

granted counsel’s motion to withdraw and affirmed Bennett’s

conviction, vacated his sentence, and remanded the case to the

district court. Id. at 267.

Bennett petitioned for certiorari to the Supreme Court,

alleging that our decision infringed his right to appellate counsel. 

The Court granted a writ of certiorari, vacated the judgment, and

remanded the case to this court “for further consideration in light

of the position asserted by the Solicitor General in his brief for

the United States.” Bennett, 128 S. Ct. at 2423. In that brief, the

government contended that our decision was inconsistent with
 We note that the government had not cited Penson in its 1

brief to this court.

6

Penson v. Ohio, 488 U.S. 75 (1988). Brief for the United States 1

at 9-10, Bennett v. United States, 128 S. Ct. 2423 (2008) (No.

07-8178).

In Penson, after Penson and two codefendants were

convicted of several crimes in Ohio state court, his counsel filed

a notice of appeal. Penson, 488 U.S. at 77. Counsel also filed a

brief document with the Montgomery County, Ohio, Court of

Appeals (the intermediate state appellate court) that stated only

that “he ha[d] carefully reviewed the within record on appeal,

[and] that he ha[d] found no errors requiring reversal,

modification and/or vacation of appellant’s jury trial convictions

and/or the trial court’s sentence.” Id. at 78. Thus, counsel

moved to withdraw. The Court of Appeals then issued an order

that granted counsel’s motion to withdraw and that also stated

that the court would “independently review the record

thoroughly to determine whether any error exists requiring

reversal or modification of the sentence.” Id. However, it

denied Penson’s requests for new counsel. Id. The court

eventually found “several arguable claims” and “concluded that

plain error had been committed in the jury instructions

concerning one count.” Id. at 79. Thus, it reversed Penson’s

sentence on that count but affirmed his conviction and sentence

on the remaining crimes. Id. 

After Penson’s appeal was dismissed by the Ohio

Supreme Court, he petitioned to the United States Supreme

Court, which reversed. The Court concluded:

It is apparent that the Ohio Court of Appeals did not

follow the Anders procedures when it granted appellate

counsel’s motion to withdraw, and that it committed an

even more serious error when it failed to appoint new

counsel after finding that the record supported several

arguably meritorious grounds for reversal of petitioner’s

conviction and modification of his sentence. As a result,
7

petitioner was left without constitutionally adequate

representation on appeal.

488 U.S. at 81. Thus, the Supreme Court found two errors that

combined to undermine Penson’s right to appellate counsel. 

First, his counsel failed to file an appropriate Anders brief,

which therefore “left the Ohio court without an adequate basis

for determining that he had performed his duty carefully to

search the case for arguable error and also deprived the court of

the assistance of an advocate in its own review of the cold record

on appeal.” Id. at 82.

Further, “the Ohio court erred by failing to appoint new

counsel to represent petitioner after it had determined that the

record supported ‘several arguable claims.’” Id. at 83. That is,

“once a court determines that the trial record supports arguable

claims, . . . the criminal appellant is entitled to representation.”

Id. at 84.

According to the Solicitor General’s brief in Bennett,

Penson stands for the proposition that, where an appellate court

determines “both that petitioner’s appointed counsel had failed

to comply with the Anders procedure and that counsel’s

substantive representation (that there were no nonfrivolous

issues in the record . . .) was incorrect,” then “the correct

disposition [is] to appoint new counsel to review the record and

file either a merits brief or an Anders-compliant brief.” Brief for

the United States at 12, Bennett v. United States, 128 S. Ct. 2423

(2008) (No. 07-8178).

This conclusion is consistent with our decisions and Local

Rules implementing Anders. Under our Rules, if a panel “finds

arguable merit to the appeal, or that the Anders brief is

inadequate to assist the court in its review, it will appoint

substitute counsel, order supplemental briefing and restore the

case to the calendar.” 3d Cir. L.A.R. 109.2 (2008). It follows

that if a panel concludes that an appeal lacks arguable merit (i.e.,

is frivolous), then our Rules do not require appointment of new

counsel. Indeed, “in those cases in which frivolousness is

patent,” we will not appoint new counsel even if an Anders brief
8

is insufficient to discharge current counsel’s obligations to his or

her client and this court. Marvin, 211 F.3d at 781; see also

Penson, 488 U.S. at 89 (O’Connor, J., concurring) (noting that

“nothing in the Court’s opinion forecloses the possibility that a

mere technical violation of [Anders] might be excusable” and

concluding that the violation in Penson “was not a mere

technical violation”).

Applying these principles here, we conclude that,

although the Anders brief filed by Coleman’s counsel was

deficient, the appeal is patently frivolous. Accordingly, this case

is distinguishable from Penson and Bennett.

Coleman, in his pro se filings with this court, contends

that “the ‘any crime of violence’ language in [18 U.S.C.] §

924(c) is ambiguous as to the allowable unit of prosecution, and

the imposition of a second mandatory-consecutive 25-year

sentence violates double jeopardy.” Coleman’s Reply to

Appellee’s Response to Counsel’s Anders Brief and Appellant’s

Pro Se Opposition at 4. However, Coleman raised and we

rejected that same argument in Coleman’s first appeal, Goggans,

257 F. App’x at 517, and that rejection binds us here. See In re

City of Philadelphia Litigation, 158 F.3d 711, 717-18 (3d Cir.

1998).

Indeed, as noted previously, the only issue properly

before us on this appeal is Coleman’s sentence following our

remand in his first appeal for re-sentencing in light of Booker.

We see no non-frivolous issues with regard to Coleman’s new

sentence. We agree with his counsel that the District Court

properly complied with the requirements of Federal Rule of

Criminal Procedure 32. The District Court also followed the

dictates of Booker and its progeny. It would have been helpful

for counsel to note that the Court correctly calculated Coleman’s

recommended sentencing range under the Guidelines, properly

determined that Coleman was subject to several statutory

mandatory minimum sentences, heard arguments from both

parties regarding an appropriate sentence on the remaining

counts, and extensively discussed the factors underlying its

sentence on the record. Moreover, the District Court exercised
9

its discretion and granted a substantial downward departure from

Coleman’s initial sentence. Thus, we see no basis in the record

to conclude that the District Court abused its discretion. See

Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 594-97

(2007).

Finally, and notwithstanding our ultimate disposition of

this case, we remind appellate counsel who seek to withdraw

from representation to heed carefully the requirements of Anders

and our Local Rules implementing that decision. As Penson

recognized, “it is through counsel that all other rights of the

accused are protected.” 488 U.S. at 84. Indeed, “[t]he need for

forceful advocacy does not come to an abrupt halt as the legal

proceeding moves from the trial to appellate stage.” Id. at 85.

III.

For the above-stated reasons, we will grant counsel’s

motion to withdraw and affirm the sentence.