2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-20-2005

USA v. Howard

Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3163

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

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 2005 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. Howard" (2005). 2005 Decisions. Paper 89.

http://digitalcommons.law.villanova.edu/thirdcircuit_2005/89
NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case No: 04-3163

UNITED STATES OF AMERICA

 v.

STEVEN HOWARD,

 Appellant

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 03-cr-00499

District Judge: The Honorable Petrese B. Tucker

 

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

December 16, 2005

Before: SLOVITER, SMITH, and VAN ANTWERPEN, Circuit Judges

(Filed: December 20, 2005)

 

OPINION OF THE COURT

 

SMITH, Circuit Judge.

Steven Howard was indicted and charged with two counts of armed bank robbery

in violation of 18 U.S.C. § 2113(d) and two counts of using a firearm during a crime of

violence in violation of 18 U.S.C. § 924(c). Howard agreed to plead guilty to all four

counts. The written plea agreement stated that he “voluntarily and expressly waive[d] all

rights to appeal” his conviction, his sentence, or any other matter relating to his
 1

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

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

 2

Although Howard had the opportunity to file an informal brief pursuant to Third

Circuit L.A.R. 109.2(a), he did not take advantage of that opportunity.

2

prosecution unless the government appealed his sentence, his sentence exceeded the

statutory maximum, or the sentencing judge erred by departing upward from the United

States Sentencing Guidelines. During the plea colloquy, the District Judge asked if 

Howard had agreed to “waive or give up your right to appeal.” He answered that he did. 

In response to the District Judge’s inquiry as to whether he understood that aspect of the

plea agreement, Howard replied in the affirmative. Howard also affirmed that he

understood the limited exceptions to his waiver. Thereafter, the District Court sentenced

Howard to 420 months of imprisonment.1

 

After filing a timely notice of appeal, Howard’s counsel moved to withdraw

pursuant to Anders v. California, 386 U.S. 738 (1967).2

 In Anders, the Supreme Court

held that the “constitutional requirement of substantial equality and fair process”

necessitates that appellant’s counsel vigorously 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. In United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001), we reiterated that an
3

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

search of appealable issues,” and it must “explain why the issues are frivolous.” 

Here, counsel correctly asserted in his Anders brief that because Howard pleaded

guilty, he is limited to asserting a constitutional right not to be haled into court on a

charge, challenging the validity of the guilty plea, and attacking the legality of his

sentence. See United States v. Broce, 488 U.S. 563, 574-76 (1989); 18 U.S.C. § 3742(a);

Tollett v. Henderson, 411 U.S. 258, 267 (1973). Counsel explained, with citations to the

record, why none of these issues had merit.

In response to the notice of appeal, the government moved to enforce Howard’s

appellate waiver by dismissing the appeal. We declared in United States v. Khattak, 273

F.3d 557, 562 (3d Cir. 2001), that “waivers of appeals, if entered into knowingly and

voluntarily, are valid.” We recognized, however, that some waivers may be invalidated if

there is an error amounting to a miscarriage of justice. In determining whether an error

warrants invalidating an appellate waiver, we observed that consideration should be given

to the alleged error, its gravity, its character, the impact of the error on the parties, and the

extent to which the defendant acquiesced in the result. Id. at 563 (quoting United States

v. Teeter, 257 F.3d 14, 25 (1st Cir. 2001)). In addition, we emphasized the importance of

the district court’s inquiry into whether the defendant understood the waiver and how it

affected him. Khattak, 273 F.3d at 563.

As we noted above, the sentencing judge fulfilled her responsibility of verifying

that Howard understood the appellate waiver and the limits it imposed. Our review of
Howard’s plea colloquy failed to reveal any indicia that either his plea or his waiver was 

involuntary or unknowing. In light of counsel’s Anders brief, which explains at length

why there is no basis for appeal, we find no reason to set aside Howard’s appellate

waiver. Accordingly, we will grant the government’s motion to enforce the appellate

waiver and to dismiss this appeal. We will also grant counsel’s motion to withdraw. We

further certify that the issues presented in this appeal lack legal merit and thus do not

require the filing of a petition for writ of certiorari with the Supreme Court. 3d Cir.

L.A.R 109.2(b). 

4