2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit 3-19-2004 

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w . v i l l a no va . e du/thir dc ir c uit_2004/927* Daniel M. Fri edman, United Stat es Senior Circui t Judge f or t he Federal Circui t, sit ti ng by designat ion.

1 NOT PRE CEDENT IAL UN ITED STA TES CO UR T O F A PPE AL S FO R T HE TH IRD CIR CU IT

____________ 02-4360

____________ UNITED S TATES OF AMERI CA

v. ARTHU R WILLIAMS,

Appellant

___________ On A ppeal from the Un ited States District Co urt For th e Ea stern D istrict of P enns ylvania (D.C. Crimi nal No. 00-361- 3) Distric t Judg e: Ho n. Stew art D alzell

___________ Submitte d Under Third Circ uit LAR 34.1(a) (1993)

December 2, 2003 Bef or e: SLOVI TER, ALI TO an d FR IE DMAN, * Circuit Judges (Fil ed: March 19, 2004) OPINION OF THE COURT FR IED M AN , Circuit

Judge
. This is an appea l by Arthur Will iams from hi s conviction and sentence, entered on his gu ilty pleas to two counts of armed bank robberyand two counts of br andishi ng a firearm during a crime of viol ence. His appellate counselhas fil ed a so-cal led And ers brief, in which s he co ncluded that the re are no non- frivol ous iss ues on appeal . We agree,2

and theref

ore affi rm the convi ction and sentence and also gr ant her motion t o withdraw as appe llate cou nsel. I Wil li ams and three o ther s were i ndic ted i n the Unite d St ates D istric t Court for the Eastern D istri ct of Pennsy lvania on two counts of armed bank robbery , in vi olati on of 18 U.S .C. § 2113(d), and two counts of br andishi ng a fire arm during a c rime of vi olen ce, i n viola tion of 18 U.S .C. § 9 24(c ). The indictm ent rela ted to tw o ban k rob beries in the c ity of Philade lphia. Three days before the schedule d tri al dat e and at the openi n g of a heari ng on defense motions, Willi ams announced that he wished to pl ead gu ilty. T he plea was a socall ed “open” one, i .e. , without prior negotiation wit

h the government . Will iams was represented by counsel at the plea and subsequent sentencing hearings. Befo re accepti ng the ple a , the d ist rict court conduc ted thealloc ution required by Federal Rule o f

Crimina l Procedu re 11. Af ter questioning W illiams at length, the court found th at theguilt

y pl ea was voluntary , that it had “an ample fact

ual basi s,” t

ha t Wil li ams underst ood “the char ges, hi s legalrigh ts, the maximum possiblepenalties, as
we ll as the man da to ry m inimu m p enalties ” and that he also u nder stood “he w aive[ d] his right to a tri al when [the court] acc ept[ed] his Ple a.” At a subs equent sentencing hearing, at wh ich th e s ame la wy er represented hi m, Willi ams was sentenced to 447 months imp rison me nt. Sub sequ ently Willi ams, acting pro se , fil ed a petit ion under 28 U.S. C. § 2255 chall enging his sentence on four grounds , inc luding i neffecti ve assi stance of co un sel.3

New coun sel w as ap poin ted, an d afte r an ev identia ry hearing the distr ict court (the s ame judge who had conducted the prior pr oceedings) rejec ted Wil li ams ’ challe nges to his sentence . The court found, however, that Will iams had i nstruc ted counsel to appeal (which counsel had not done), an d granted § 2255 reli ef to the extent of providi ng a fur ther app eal p erio d. The same counsel who had re presented Willi ams in the § 2255 proceedings wa s appointe d to represent hi m on his appeal . As indi cated, she fil ed an And ers brief i n which she stated that

“after a conscie ntious examinati on of the re cord, [s he could] find no nonfrivol ous iss ues for appeal .” II In An ders v . Califo rnia , the Supreme Court st ated that an appel late counsel who “finds his c ase to b e w hol ly frivo lou s, a fter acons cientio us ex amin ation o f it, . . . should
so advise the co urt and re quest permissi on to withdr aw. That reques t must, however, be accompanied by a brief re ferri ng to an ything in the record that might arguably

support t

he app eal.” 386 U.S . 738, 7 44 (1 967 ). Ap pellate c oun sel in this case car efull y fol lowed those requirements in t he And ers brief s he su bm itted. Th e brief discu ssed th e eff ect of a guilty plea and the standards gove rning the v alidi ty of such a ple a. The bri ef cit ed the trans cript

of the pl ea heari ng showing that the dis tri ct court

had complied wit

h the requ ireme nts of Rule 11. Finally, the brief consi dered vario us aspect s of “the l egali ty of the sentence .” The bri ef showed that appell ate c oun sel sea rched the rec ord f or po ssible gro und s for appeal , and convi ncingly explai ned why counselhad been unable to find any “no n-f rivo lou s issu es f or a ppe al.”4

And ers further

stated thatupon the fi ling of t he And ers brief, “the court – not
cou ns el – then proce eds, after a ful l examination of al l the proceedings, to deci de whether the case is wholly frivol ous.” Id. We have e xam ined th e reco rd an d con sidere d po ssible grounds for appeal and have con cluded that this appeal i s wholly frivol ous. F inall y, And ers requires that “[a] copyof counsel’ s brie f should be furnished t he indigent and time al lowed him to raise anypoin ts that hechooses. ” Id. In respons e to the And ers brief, Willi ams file d documents in w hich h e made another argument in s upport of his claim of ine ffec tive ass istance of co unse l. He s tated th at his pr ior cou nsel h ad told him that he faced a maximum sentenc e of li fe impri son ment if conv icte d on the gun brandis hing char ge; that co ncern abou t such a sen tence wa s a sign ifican t facto r in indu cin g him to plead guilty ; and that his attorney’ s legal advice was incorrect because und er the p ertinen t statute h e cou ld no t have been senten ced to life imp risonm ent. Section 924(c) of Ti tle 18, under which the gun-brandi shing char ge to which h e pleaded guilty was laid, pro vides f or vari ous sente nces dependi ng upon the type of
w eapon invo lved, th e w ay in wh ich it w as use d, and wh ether th e def enda nt had a prio r conviction under the provisi on. The minimum sent ences range from 5 year s impris onment to li fe impris onm ent, an d the m axim um senten ce is life impris onm ent, regardless of

wh at subs ectio n th e de fen dan t is se nten ced und er. United States v. Pounds , 230 F.3d 1317, 1319 ( 11 th Cir. 2 000 ). William s con tends that u nd er thes e provis ions the parti cular

gun brandis hing offense f or which he wa s con victed could not h ave re sulted in a lif e impris onment sente nce.5

On the rec ord before us , we cannot say that if Wil li ams had been tried and convict ed on the gun brandi shing char ge, he would not have faced li fe i mp ri so nme nt . H e
was not de nied effect

ive ass ist ance of counselby hi s lawy er’s a dvice that he faced s uch a senten ce if h e w ent to tria l. Acco rd in gl y, we affirm Will iams’ convi ction and sentence under his guilt y pl ea, and w ill grant c oun sel’s m otion to with draw as ap pellate c oun sel.