NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-3980
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UNITED STATES OF AMERICA
v.
HARRY JACKSON,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA
(D.C. Crim. Action No. 08-731-001)
District Judge: Honorable Mary A. McLaughlin
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Submitted Under Third Circuit LAR 34.1(a)
July 16, 2010
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Before: RENDELL, JORDAN, and GREENAWAY, JR., Circuit Judges
(Opinion Filed: August 17, 2010)
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OPINION
GREENAWAY, JR., Circuit Judge
Harry Jackson pled guilty to violations of 18 U.S.C. § 1951(a), conspiracy to
interference with interstate commerce by robbery; 18 U.S.C. §§ 1951(a), (b)(1)(3), and
(2)(a), interference with interstate commerce by robbery, and aiding and abetting; and 18
U.S.C. §§ 924(c)(1) and (2), use of a firearm during a crime of violence. The United
States District Court for the Eastern District of Pennsylvania sentenced him to 135
months’ imprisonment. Jackson appealed to this Court to challenge his sentence.
Jackson’s counsel (“Counsel”) petitions this Court for permission to withdraw from
representing Jackson on appeal, pursuant to Anders v. California, 386 U.S. 738 (1967).
For the reasons addressed below, we will grant Counsel’s petition and affirm the sentence
imposed by the District Court.
I. BACKGROUND
We write solely for the benefit of the parties and recount only the essential facts.1
The charges in this case arose from Jackson’s participation, with Jeffrey Prout, in
an armed robbery of $700,000.2 Prior to the robbery, Jackson, was terminated from his
job as a guard at Dunbar Armored, Inc. (“Dunbar”) for routinely submitting incorrect
paperwork and for making an incomplete cash delivery. On November 14, 2008, Jackson
and Prout staked out Whitman Check Cashing in Philadelphia, Pennsylvania, where they
awaited the arrival of a Dunbar truck. The truck arrived, and a guard holding a bag of
money entered Whitman Check Cashing at about 9:00 a.m. Prout approached the guard,
pushed him to the ground, put a gun to his head, and took the bag, which contained
1
The following facts are drawn from the revised Presentence Investigation Report
(“PSR”). Jackson’s failure to contest the facts recounted in the PSR during his sentencing
hearing constitutes an admission of those facts. United States v. Siegel, 477 F.3d 87, 93
(3d Cir. 2007).
2
Prout was charged separately and pled guilty to all charges.
2
$700,000, most of which were $100 bills. During the robbery, Jackson held the door of
the store shut from outside. Both Jackson and Prout fled the scene.
A witness described Jackson as wearing a blue sweatshirt. A blue sweatshirt was
found in a nearby alley, along with a cell phone that contained Prout’s telephone number
in the address book and a text message to Jackson’s girlfriend that said, “I’m on my
mission.” Jackson also called his girlfriend from a different phone after the robbery.
When she asked Jackson why he was not calling from his phone, he responded, “I don’t
know where it is at.”
On November 15, 2008, Jackson was arrested by Federal Bureau of Investigation
agents at 1432-B North 15th Street in Philadelphia. 3 His car was found nearby. Agents
discovered a loaded Charter Arms .38 caliber revolver inside of the trunk of Jackson’s
car, as well as some of Prout’s paperwork. Subsequent DNA analysis revealed Prout’s
DNA on the revolver.
On May 26, 2009, Jackson pled guilty to all charges. The PSR calculated
Jackson’s sentencing guideline range as forty-one to fifty-one months’ imprisonment,
based on a total offense level of twenty-two and a criminal history category of I. A
consecutive sentence of eighty-four months’ imprisonment was, however, mandatory
3
Prout was arrested on November 18, 2008 in Delaware. In the apartment where
Prout was arrested, FBI agents found many newly-purchased and expensive electronics,
plus $3,600 in cash, in $100 bills. Mike Dingle, who was with Prout at the time of his
arrest, had an additional $8,900 in cash, also in $100 bills.
3
pursuant to 18 U.S.C. § 924(c)(1). Thus, the total sentencing range was calculated as 125
to 135 months’ imprisonment.
At the October 5, 2009 sentencing hearing, the District Court adopted the PSR’s
United States Sentencing Guidelines (“Guidelines”) calculations, to which Jackson did
not object. Prior to announcing Jackson’s sentence, the District Court addressed
Jackson’s failure to return the stolen money or provide information as to its location:
There’s been some discussion mainly by [Counsel] about potential
fear, potential this, potential that. I don’t know. But I do know that
there’s $700,000 missing and that Mr. Jackson has not come
forward. I don’t know whether it’s fear. I don’t know but I do know
that there’s $700,000 missing and that we all make mistakes. And as
[Assistant United States Attorney] Mr. Wzorek said, this is way
beyond a mistake. But sometimes when you do something that’s
very bad as this is, sometimes there’s a chance to rectify it
somewhat.
You can’t take back the terror of the—that was imposed on the guard
but maybe you can get the money back for the—the victim—the
victims. Not done here. And no attempt to, as I understand it, to
discuss things.
(App. Vol. III at 60-61.) The District Court sentenced Jackson to 135 months’
imprisonment.
On October 12, 2009, Jackson filed a notice of appeal with this Court, asserting
that the District Court abused its discretion and imposed an unreasonable sentence by
sentencing him at the highest end of the Guidelines range. Specifically, Jackson argues
that the District Court placed too much weight on the fact that he neither returned the
stolen money nor provided information about the money’s location. Absent the allegedly
4
undue weight the District Court granted these facts, Jackson argues that his positive
personal qualities would have resulted in a sentence at the lower end, or below, the
Guidelines range.
On January 29, 2010, Counsel filed an Anders brief (the “Brief”), in which she
asserted that there exist no nonfrivolous grounds for appeal.
II. JURISDICTION
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
III. STANDARD OF REVIEW
“In Anders v. California, 386 U.S. 738 (1967), the Supreme Court explained the
general duties of a lawyer representing an indigent criminal defendant on appeal when the
lawyer seeks leave to withdraw from continued representation on the grounds that there
are no nonfrivolous issues to appeal.” United States v. Marvin, 211 F.3d 778, 779 (3d
Cir. 2000). Under Anders, counsel seeking to withdraw from representation must “satisfy
the court that he or she has thoroughly scoured the record in search of appealable issues”
and then “explain why the issues are frivolous.” Id. at 780. “The Court's inquiry when
counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled
[Third Circuit Local Appellate Rule 109.2's] requirements;4 and (2) whether an
4
Local Appellate Rule 109.2 provides, in pertinent part:
Where, upon review of the district court record, counsel is persuaded that
5
independent review of the record presents any nonfrivolous issues.” United States v.
Youla, 241 F.3d 296, 300 (3d Cir. 2001). Where frivolousness is patent, however, “we
will not appoint new counsel even if an Anders brief is insufficient to discharge current
counsel’s obligations to his or her client and this court.” United States v. Coleman, 575
F.3d 316, 321 (3d Cir. 2009) (quotation marks omitted).
IV. ANALYSIS
The Brief identifies two appealable issues, both of which Counsel believes to be
frivolous: (1) that the District Court placed too much weight on the fact that Jackson
neither returned the stolen money nor furnished information about the money’s location;
and (2) that the sentence itself was unreasonable in light of the factors established in 18
U.S.C. § 3553(a).5 Though stated as two issues, both concern the reasonableness of the
the appeal presents no issue of even arguable merit, counsel may file a
motion to withdraw and supporting brief pursuant to Anders v. California,
386 U.S. 738 (1967), which must be served upon the appellant and the
United States. The United States must file a brief in response. Appellant
may also file a brief in response pro se. . . . If [the court] finds arguable
merit to the appeal, or that the Anders brief is inadequate to assist the court
in its review, it will appoint substitute counsel, order supplemental briefing
and restore the case to the calendar.
5
The § 3553(a) factors are:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense;
(B) to afford adequate deterrence to criminal conduct;
6
sentence imposed on Jackson by the District Court. The Government filed a brief in
reply, agreeing with Counsel that there are no nonfrivolous grounds for appeal. Jackson
did not file pro se an informal brief explaining why his appeal was not frivolous.
To determine whether a sentence is unreasonable, we first look to whether the
sentencing court committed a serious procedural error, United States v. Lopez-Reyes, 589
F.3d 667, 670 (3d Cir. 2009) (citing Gall v. United States, 552 U.S. 38, 51 (2007)), and
then “review the substantive reasonableness of the sentence under an abuse of discretion
standard.” Lopez-Reyes, 589 F.3d at 672. The appellant bears the “burden of
demonstrating unreasonableness.” United States v. Tomko, 562 F.3d 558, 567 (3d Cir.
2009) (en banc). The appellate court is highly deferential to the District Court when
reviewing the sentence, because the lower court is best suited to impose a sentence based
on the facts of the case. United States v. Ashburn, 502 F.3d 313, 329 (3d Cir. 2007). As
(C) to protect the public from further crimes of the defendant;
and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for--
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the
guidelines-- . . .
(5) any pertinent policy statement-- . . .
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the offense.
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long as a sentence falls within the broad range of possible sentences that can be
considered reasonable in light of the § 3553(a) factors, we must affirm. United States v.
Wise, 515 F.3d 207, 218 (3d Cir. 2008).
The Brief posits that the District Court properly applied the § 3553(a) factors.
Thus, we must “determine whether the ‘§ 3553 factors were reasonably applied to the
circumstances of the case.’” United States v. King, 604 F.3d 125, 145 (3d Cir. 2010)
(quoting United States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006)). “We will affirm if a
‘reasonable sentencing court would have imposed the same sentence on that particular
defendant for the reasons the district court provided.’” Id. at 145 (quoting Tomko, 562
F.3d at 568).
According to Counsel, the District Court considered the fact that the money was
never returned as a part of the nature and circumstances of the offense; the 135-month
prison sentence imposed was within the Guidelines range; there is no evidence that the
District Court weighed the failure to return the stolen money more heavily than any other
factor; and there is no evidence of abuse of discretion by the District Court.
We find that the District Court reasonably applied the § 3553(a) factors in this
case. The District Court took into account Jackson’s positive characteristics, including
his excellent employment history and the dedicated support of his family. (App. Vol. III
at 60.) The District Court, however, also noted that Jackson’s gun was used in the
robbery, and that because Jackson was familiar with Dunbar’s operations, he may have
8
orchestrated the crime. (Id.) Further, it is undisputed that Jackson played a major role in
the armed robbery. The District Court commented that while Jackson could never take
back the terror imposed on the Dunbar guard, he (Jackson) could have mitigated the
damage done by getting the money back for the victims. (Id. at 61.) He did not.6
Viewed as a whole, the record demonstrates that the court “adequately considered
the § 3553(a) factors and reasonably applied them to the circumstances presented in
[Jackson’s] particular case.” Cooper, 437 F.3d at 332. Because the Guidelines sentence
imposed “falls within the broad range fo possible sentences that can be considered
reasonable in light of the § 3553(a) factors, we must affirm.” Wise, 515 F.3d at 218. For
that reason, we find that the Brief is adequate under Anders.
Our independent review of the record confirms that there are no other non-
frivolous issues to appeal. Jackson entered his plea in open court, and did not contest the
PSR’s contents or the District Court’s calculation of the Guidelines range.
V. CONCLUSION
For the above-stated reasons, we will affirm the judgment of the District Court and
grant Counsel’s motion to withdraw from the representation of Jackson.
6
While there is no evidence that Jackson knew the money’s whereabouts, Counsel,
during an on-the-record sidebar, indicated that Jackson did know where the money was,
and refused to discuss its location due to his fear of reprisal. (See App. Vol. III. at 62.)
9