2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-14-2010

USA v. Lattimore

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2338

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Recommended Citation

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-2338

 

UNITED STATES OF AMERICA

v.

WILLIAM LATTIMORE,

 Appellant

 

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-04-cr-00280-10)

District Judge: Honorable Faith S. Hochberg

 

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 14, 2010

Before: RENDELL, FISHER and GARTH, Circuit Judges.

(Filed: September 14, 2010)

 

OPINION OF THE COURT

 

FISHER, Circuit Judge.

William Lattimore pled guilty to conspiring to distribute cocaine and heroin in

violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A), and 846, and now appeals his conviction
2

and sentence. His appointed counsel seeks to withdraw pursuant to Anders v. California,

386 U.S. 738 (1967). We will grant counsel’s motion and affirm.

I.

We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

Lattimore was a member of a large-scale drug ring that distributed significant

quantities of cocaine and heroin in northern New Jersey. Following a lengthy

investigation, Lattimore was indicted, along with eleven co-defendants, and charged with

knowingly and intentionally conspiring with others to distribute five kilograms or more of

cocaine, and one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a),

841(b)(1)(A), and 846.

On March 29, 2006, Lattimore, represented by Anthony J. Iacullo, Esq., pled

guilty to the charges in the United States District Court for the District of New Jersey. At

the plea hearing, the District Court ensured, among other things, that Lattimore was not

under the influence of drugs or alcohol, that he had not been threatened or coerced into

pleading guilty, and that he had reviewed and understood the plea agreement:

[The Court]: Mr Lattimore have you gone over the plea agreement

with Mr. Iacullo fully and completely?

[The Defendant]: Yes.

[The Court]: Do you understand it fully and completely?
3

[The Defendant]: Yes.

(App. at A43.) The Court also reviewed the plea agreement’s waiver of appeal provision:

The Court: So as I understand it, and for Mr. Lattimore’s benefit,

if he receives a sentence within the guideline range of

31, then neither he nor the Government may file an

appeal of the sentence. Correct? 

[The Government]: That is correct, Your Honor.

The Court: Did you understand that, Mr. Lattimore?

The Defendant: Yes.

(App. at A42.) The Court accepted Lattimore’s plea and requested that a Presentence

Investigation Report (PSR) be prepared for the sentencing hearing.

The PSR determined that Lattimore was a career offender and assigned him a total

offense level of 34 and a criminal history category of VI, resulting in an advisory

guideline range of 262-327 months. The PSR also noted, however, that the plea

agreement had stipulated to a total offense level of 31 and a criminal history category IV,

which resulted in a lower advisory guideline range of 188 to 235 months. At the

November 20, 2006 sentencing hearing, the District Court commended Lattimore’s

counsel on this reduction:

The Court: I have to say, you’ve already done a remarkable job on behalf

of Mr. Lattimore. . . . [Y]ou’ve successfully argued on his

behalf . . . to get him down from a 34, criminal history

category six, where he factually probably belongs, to a 31,

criminal history category four[.] . . . [Y]ou’ve done yeoman

service to him, Mr. Iacullo.
1

Initially, there was a dispute as to whether Lattimore’s appeal was timely filed. 

We directed the District Court to resolve the issue and, at a hearing convened on

February 25, 2009, the District Court held that the appeal was timely filed.

2

The District Court had jurisdiction under 18 U.S.C. § 3231, and we have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

4

(App. at A64-65.) Ultimately, after considering the 18 U.S.C. § 3553(a) factors, the

Court sentenced Lattimore to 188 months of imprisonment and five years of supervised

release, the top of the stipulated guideline range, and issued a $5,000 fine and a $100

special assessment.

Lattimore filed a timely notice of appeal.1

 Lattimore’s newly appointed counsel,

Robert W. Ray, Esq., filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

alleging that Lattimore did not have any nonfrivolous issues for review. Lattimore

received notice of the brief and an invitation to file a pro se brief, but chose not to do so.2

II.

Under Anders, appointed counsel may request permission to withdraw from

frivolous cases so long as the request is “accompanied by a brief referring to anything in

the record that might arguably support the appeal.” 386 U.S. at 744. “A copy of

counsel’s brief should be furnished [to] the indigent and time allowed him to raise any

points that he chooses[.]” Id. Then, the court must conduct its own “full examination of

all the proceedings, to decide whether the case is wholly frivolous.” Id.

We have outlined a two-step inquiry that must be completed when counsel submits

an Anders brief. First, we must determine “whether counsel adequately fulfilled the
5

rule’s requirements[.]” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). 

Second, we examine “whether an independent review of the record presents any

nonfrivolous issues.” Id.

III.

A. Anders requirements

Counsel fulfills the Anders requirements when the Anders brief (1) “satisf[ies] the

court that counsel has thoroughly examined the record in search of appealable issues,”

and (2) “explain[s] why the issues are frivolous.” Id. Here, counsel searched diligently

for appealable issues but explained in detail that the plea proceeding complied with

Federal Rule of Criminal Procedure 11; that the sentencing proceeding complied with

Federal Rule of Criminal Procedure 32 and that Lattimore had waived his right to appeal

the sentence in his plea agreement; and that there is no indication that Lattimore was

denied effective assistance of counsel. This analysis is sufficient to meet the Anders

requirements.

B. Independent review

“Where the Anders brief initially appears adequate on its face, the proper course is

for the appellate court to be guided in reviewing the record by the Anders brief itself.” Id.

at 301 (quotations and citations omitted). Thus, “we confine our scrutiny to those

portions of the record identified by an adequate Anders brief[.]” Id.

Our independent review of Lattimore’s appeal does not uncover any nonfrivolous

issues. The March 29, 2006 plea colloquy was comprehensive and in compliance with
3

Although Lattimore did not file a pro se brief to clarify his position, defense

counsel asserts that it is Lattimore’s position that he was misinformed by his prior counsel

as to the sentence he would receive and the degree to which he was waiving his right to

appeal or challenge that sentence.

6

Rule 11(b). Therein, Lattimore affirmed, among other things, that the plea was voluntary

and uncoerced and that he understood the terms of his limited waiver of appeal. 

Likewise, at the sentencing hearing, the District Court complied with Rule 32 and United

States v. Booker, 543 U.S. 220 (2005), ultimately adhering to the agreed-upon stipulated

guideline range. The appeal of this sentence was foreclosed by Lattimore’s knowing and

voluntary waiver in the plea agreement of his right to appeal a sentence within the

stipulated guideline range. See United States v. Khattak, 273 F.3d 557, 562 (3d Cir.

2001) (holding that “waivers of appeals, if entered into knowingly and voluntarily, are

valid”).

Any Sixth Amendment ineffective assistance of counsel claim is also without

merit.3

 We review ineffective assistance of counsel claims on direct appeal only in the

very rare case where the evidence of ineffective assistance is so clear that an evidentiary

hearing is not needed to develop the relevant facts. United States v. McLaughlin, 386

F.3d 547, 555-56 (3d Cir. 2004). Here, the record does not show a clear instance of

ineffective assistance. To prevail on such a claim, Lattimore would need to show

(1) “that counsel’s performance was deficient,” and (2) “that the deficient performance

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). There is

absolutely no evidence of the former. Lattimore affirmed at the plea hearing that he fully
7

understood both the plea agreement and the waiver of appeal, and there is no evidence in

the record that Mr. Iacullo was in any way deficient in his representation. On the

contrary, the District Court commended Mr. Iacullo on his success in negotiating a total

offense level of 34 and a criminal history of VI down to a total offense level of 31 and a

criminal history of IV.

IV.

For the foregoing reasons, we will grant counsel’s motion to withdraw and affirm

the conviction and the sentence.