NOT PRECEDENTIAL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
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?
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[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.
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(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
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.
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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
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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
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.
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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.
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