2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-6-2009

USA v. Leon Foreman

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3574

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Recommended Citation

"USA v. Leon Foreman" (2009). 2009 Decisions. Paper 1587.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-3574

 

UNITED STATES OF AMERICA

v.

LEON LAND

a/k/a LEON FOREMAN

a/k/a LEON L. LAND

a/k/a LOUVIORE CARTER

a/k/a LEON CARTER-LAND

a/k/a LEON CARTER LAND

a/k/a LEON CARTER

a/k/a LEON CARTER-FOREMAN

a/k/a TERRY LAND

a/k/a LEON JR. CARTER

a/k/a LOUVIERS LAND

 Leon Foreman,

 Appellant

 

Appeal from the United States District Court

for the District of New Jersey

(D.C. Criminal No. 06-cr-00588-1)

District Judge: Honorable Robert B. Kugler

 

Submitted Under Third Circuit LAR 34.1(a)

February 3, 2009

Before: RENDELL, JORDAN, and ROTH, Circuit Judges

(Filed: April 6, 2009)
2

 

OPINION OF THE COURT

 

RENDELL, Circuit Judge.

Appellant was indicted on charges relating to a scheme to falsely obtain money

and property from a bank through a series of fraudulent transactions, including business

loans. Appellant pleaded guilty to wire fraud and money laundering in violation of 18

U.S.C. §§ 1343 and 1957(a) in a signed written statement, as well as orally at a January 5,

2007 plea hearing. Appellant was sentenced to 24 months in prison and ordered to make

restitution to the victim, a creditor bank, in the amount of $79,395.68. He filed a timely

appeal. 

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. See United

States v. Tannis, 942 F.2d 196, 197 (3d. Cir. 1991). In his pro se brief, Appellant argues

that his indictment was flawed and his true identity was never verified in the prosecution

of his case, which we construe as a challenge to his ultimate plea. He also argues that the

loss amount attributed to him was too high, resulting in excessive restitution and

sentencing. However, Appellant points to nothing in the record or elsewhere to justify a

lower figure. Appellant further alleges judicial misconduct and ineffective assistance of

counsel. Seeking to withdraw from representation, counsel for Appellant filed an Anders

brief.
3

In his plea agreement, Appellant waived his right to appeal as long as the

stipulations in the plea were accepted by the District Court. Waivers of rights to appeal

are generally enforced in this circuit unless “a miscarriage of justice” would result. See

United States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001). Without deciding to affirm

on the basis of Appellant’s waiver, we consider his potential grounds for appeal for the

purpose of addressing his counsel’s Anders brief. 

In assessing an Anders brief, we must determine: 1) whether counsel has

thoroughly examined the record for appealable issues and has explained why any such

issues are frivolous; and 2) whether an independent review of the record presents any

non-frivolous issues. United States v. Thomas, 389 F.3d 424, 425 (3d Cir. 2004); United

States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). If the Anders brief appears adequate,

we will confine our scrutiny to the portions of the record identified in Appellant’s pro se

brief and counsel’s Anders brief. See Youla, 241 F.3d at 301. The standard of review for

frivolousness is determined by the standard of review for each issue. See, e.g., United

States v. Schuh, 289 F.3d 968, 974-76 (7th Cir. 2002). “We exercise plenary review over

the district court’s legal conclusions and apply a clearly erroneous standard to its factual

findings.” Cradle v. United States ex. rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). With

respect to claims of excessive sentence we review under an abuse of discretion standard. 

See United States v. Cifuentes, 863 F.2d 1149, 1150 (3d Cir. 1988).

Our independent review of those portions of the record addressing issues raised by

the Anders and pro se briefs reveal no non-frivolous arguments. Appellant argues that his
4

indictment was flawed, but the only potential “flaw” he identifies was that the

Government never verified Appellant’s identity. First, although he was indicted,

Appellant waived his right to prosecution by indictment. Second, the only available

challenges to an indictment after an unconditional guilty plea are for lack of jurisdiction

or failure to charge a crime, neither of which are alleged or feasible here. See United

States v. Hedaithy, 392 F.3d 580, 586 & n.6 (3d Cir. 2004).

Regardless of whether we construe this as a challenge to Appellant’s indictment or

to his ultimate guilty plea, it is frivolous because his identity was sufficiently verified. 

Appellant asserts that his counsel gave a combination of the names “Land” and his real

surname, “Foreman,” to the District Court. In fact, the headings on all relevant

documents list multiple aliases, but include Appellant’s admitted full name of “Leon

Foreman,” which is also the name Appellant signed on the plea agreement. During the

plea hearing, the District Court referred to Appellant as “Mr. Foreman,” per his request. 

Counsel addresses the sufficiency of Appellant’s plea and notes that Appellant

pleaded guilty only after counsel’s thorough “line by line and item by item” explanation. 

(AA 142.) Appellant asked numerous questions about the plea and professed to

understanding its significance. Appellant signed the plea agreement in counsel’s presence

on two occasions. Furthermore, the plea agreement and plea hearing transcript do not

suggest any coercion of Appellant by the Government or the Court, and Appellant

indicated that he was not under the influence of any substance. Appellant admitted, after

detailed explanation, to the offenses charged including using a false social security
5

number, creating falsified loan applications and receiving checks thereon, and depleting

certain accounts. After this thorough explanation and Appellant’s admission of guilt, the

District Court found Appellant to be “competent, [and] capable of entering a knowing and

intelligent plea.” (AA 41.) We find it patently frivolous for Appellant to claim his plea

or indictment was rendered ineffective for lack of identification, because his name

appeared on all of the relevant documents and he admitted guilt orally and in a written

plea agreement competently signed by Leon Foreman.

 As to the loss amount, Appellant claims that further research would have

uncovered additional payments to the victim bank that would have reduced the overall

injury, and would have reduced the length of his sentence. However, Appellant offers

nothing to substantiate these claims. Counsel explains that he researched the loss amount

issue, and uncovered additional loan payments to the victim which resulted in a reduction

of more than $55,000 in restitution. Furthermore, Appellant was sentenced to 24 months,

instead of the originally recommended 28 month sentence. We find that counsel

thoroughly investigated the loss amount and successfully argued the matter resulting in a

reduction in restitution and sentence. We find no non-frivolous argument suggesting that

the loss amount would have been further reduced through additional investigation, and

conclude that the District Court did not abuse its discretion in Appellant’s sentencing.

Appellant also argues that he was a victim of ineffective assistance of counsel and

judicial misconduct. First, as Appellee points out, we “generally do[] not review Sixth

Amendment ineffective assistance of counsel claims on direct appeal.” See United States
6

v. Olfano, 503 F.3d 240, 246 (3d Cir. 2007). Appellant’s contention that there was

judicial misconduct also fails. As we stated above, Appellant entered a knowing,

intelligent, voluntary, uncoerced plea. Counsel contends, and we agree, that there was no

discernable misconduct, unfairness, or partiality on the part of the District Court. 

The issues raised by Appellant are patently without merit and, through our own

independent review, we can identify no other non-frivolous arguments. Accordingly,

counsel is under no obligation to file a petition for writ of certiorari in the Supreme Court

per 3d Cir. L.A.R. 109.2(b). 

We will AFFIRM the judgment of the District Court and, in a separate order,

GRANT counsel’s motion to withdraw.