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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 11-3377

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UNITED STATES OF AMERICA

v.

JOHNNIE MARKEL CARTER,

Appellant

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 2-07-cr-00374-001

District Judge: The Honorable Lawrence F. Stengel

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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

January 10, 2014

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Before: SMITH, SHWARTZ and SCIRICA, Circuit Judges

(Filed: March 3, 2014)

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OPINION

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SMITH, Circuit Judge.

Johnnie Markel Carter was found guilty by a jury of two counts of 
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conspiring to commit armed bank robbery in violation of 18 U.S.C. § 371, three 

counts of armed bank robbery in violation of 18 U.S.C. §§ 2113(d) and 2, and three

counts of carrying and using a firearm during a crime of violence in violation of 18 

U.S.C. §§ 924(c)(1) and 2. The United States District Court for the Eastern 

District of Pennsylvania sentenced Carter to an aggregate sentence of 840 months. 

This timely appeal followed.1

Carter’s counsel, who also represented him in the District Court, filed an 

Anders brief2and requested leave to withdraw as counsel.3 In Anders, the Supreme 

Court stated that the “constitutional requirement of substantial equality and fair 

process” means that appellate counsel must act as an advocate for the defendant. 

386 U.S. at 744. Thus, counsel’s 

role as advocate requires that he support his client’s appeal to the best 

of his ability. Of course, if 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. That request must, 

however, be accompanied by a brief referring to anything in the 

record that might arguably support the appeal. 

Id. As we explained in United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001), 

the Anders brief must demonstrate that counsel has “thoroughly examined the 

 

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The District Court exercised jurisdiction under 18 U.S.C. § 3231. We exercise 

appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). 

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 See Anders v. California, 386 U.S. 738 (1967).

3 Consistent with Third Circuit Local Appellate Rule 109.2, Carter was advised of 

his right to file a pro se brief. Despite several extensions of time, Carter failed to 

timely file any pro se submission challenging his conviction or sentence. 
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record in search of appealable issues,” and it must “explain why the issues are 

frivolous.” Accordingly, our inquiry is twofold: (1) whether counsel adequately 

fulfilled the requirements of Anders; and (2) “whether an independent review of 

the record presents any nonfrivolous issues.” Id. (citing United States v. Marvin, 

211 F.3d 778, 780 (3d Cir. 2000)); see also Anders, 386 U.S. at 744 (explaining 

that the court must proceed, “after a full examination of all the proceedings, to 

decide whether the case is wholly frivolous”). If review fails to reveal any 

nonfrivolous issues, the court “may grant counsel’s request to withdraw and 

dismiss the appeal.” Anders, 386 U.S. at 744.

After considering counsel’s Anders brief, we are satisfied that she 

thoroughly examined the record for issues of arguable merit and fulfilled the 

requirements of Anders. We agree with counsel that any contention that the 

evidence was insufficient lacks merit. The testimony of the witnesses, including 

two of Carter’s accomplices, and the physical evidence tying Carter to each bank 

robbery were more than sufficient to establish the elements of each of the offenses

of conviction. Although some of the testimony may have been subject to attack 

because of inconsistencies and self-interest, we “review[] the sufficiency of the 

evidence in the light most favorable to the government and must credit all available 

inferences in favor of the government.” United States v. Riddick, 156 F.3d 505, 

509 (3d Cir. 1998). If a rational juror could have found the elements of the crime 
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beyond a reasonable doubt, we must sustain the verdict. United States v. 

Cartwright, 359 F.3d 281, 286 (3d Cir. 2004). Having reviewed the record, we 

conclude that there is no basis for setting aside any of Carter’s convictions. 

With respect to Carter’s sentence, we review it for procedural and 

substantive reasonableness, applying an abuse of discretion standard to both 

inquiries. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). 

“[I]f the district court’s sentence is procedurally sound, we will affirm it unless no 

reasonable sentencing court would have imposed the same sentence on that 

particular defendant for the reasons the district court provided.” Id. at 568. 

We agree with counsel that there is no procedural error with regard to the 

computation of the sentencing guideline range. Nor do we find the sentence to be 

substantively unreasonable. The District Court noted the lack of any remorse by 

Carter at sentencing. It further noted that Carter’s crimes “were well-planned [and]

sophisticated.” The Court rejected the defense request to impose only the 

mandatory minimums on the § 924(c) convictions and one day on the other 

substantive counts of robbery and conspiracy. It explained that such a sentence 

“would be a statement that the mandatory minimums were too long, and because 

they are too long there should be no sentence at all on the [other] substantive 

counts of robbery and conspiracy.” In the District Court’s view, it “would be 

unjust to give [Carter] no sentence on these robberies and conspiracy charges.” 
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Finally, the Court noted that its lengthy sentence was necessary to protect the 

public as Carter had “acted out violently from time-to-time his entire life and 

showed absolutely no hesitation in terrorizing and intimidating people to obtain 

some money to support himself.” In light of the District Court’s explanation, we 

conclude that there was neither procedural nor substantive error by the District 

Court at the time of sentencing. 

The government agrees with the assessment by Carter’s counsel that the 

appeal is frivolous. To its credit, the government identified an additional issue 

worthy of our consideration, i.e., the applicability of the Supreme Court’s recent 

decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), which was decided 

after both entry of the District Court’s judgment and the filing of the Anders brief. 

The government posits that the District Court erred under Alleyne by increasing the 

mandatory minimum sentence on the first § 924(c) offense from five years to seven 

years on the basis that Carter “brandished” the firearm. According to the 

government, plain error review applies and Carter is unable to demonstrate that 

correction of this error is warranted under the circumstances. See Olano v. United 

States, 507 U.S. 725, 732 (1993) (setting out the four prong test for plain error

review). 

Because plain error is determined at the time of appellate review, Henderson 

v. United States, __ U.S. __, 133 S. Ct. 1121, 1126-27 (2013), and because the jury 
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did not determine that Carter “brandished” the firearm for the first §924(c) 

conviction, we conclude that it was error to conclude that Carter was subject to a 

mandatory minimum sentence of seven years. Alleyne, 133 S. Ct. at 2163. 

Significantly, the indictment in this case alleged in the conspiracy count that 

Carter brandished the firearm. In light of that averment and because the evidence 

clearly established brandishing, we are persuaded that the error did not “seriously 

affect the fairness, integrity or public reputation of judicial proceedings.” See 

Olano, 507 U.S. at 732 (internal quotation marks and citation omitted); see also 

United States v. Cotton, 535 U.S. 625, 634 (2002) (concluding plain error did not 

warrant correction in light of overwhelming evidence and damage to reputation of 

judicial proceedings if defendants, who were involved in a “large scale drug 

operation,” were to receive a sentence for those convicted on lesser offenses). 

In sum, we agree with counsel’s assessment of Carter’s appeal. Our own 

independent review of the record fails to reveal any nonfrivolous issues for appeal. 

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

of the District Court entered on September 13, 2011. We certify that the issues 

presented in the appeal lack legal merit and thus do not require the filing of a 

petition for writ of certiorari with the Supreme Court. See Third Circuit L.A.R.

109.2(b).