NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-2518
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UNITED STATES OF AMERICA
v.
RANDOLPH SANDERS,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 07-cr-366)
District Judge: Hon. James T. Giles
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Submitted Under Third Circuit LAR 34.1(a)
December 16, 2010
Before: JORDAN, HARDIMAN and VAN ANTWERPEN, Circuit Judges.
(Filed December 17, 2010)
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Randolph Sanders appeals a May 14, 2008 judgment of the United States District
Court for the Eastern District of Pennsylvania sentencing him to a mandatory minimum
term of imprisonment pursuant to a plea agreement. His attorney has moved to withdraw
under Anders v. California, 386 U.S. 738 (1967). For the reasons that follow, we will
grant the motion to withdraw and affirm the District Court’s judgment.
I. Background
On November 14, 2006, Sanders was stopped by two police officers after failing
to use a turn signal while crossing two lanes of traffic. Upon approaching the vehicle to
investigate, one of the officers observed a bag containing a white powdery substance on
the floor behind the passenger seat. Sanders was cited for an illegal lane change, and the
officers seized the bag, which contained 995 grams of cocaine.
Sanders was indicted for possession with intent to distribute 500 grams or more of
cocaine. The government filed an Information Charging Prior Offenses, pursuant to 21
U.S.C. § 851, which listed three convictions Sanders had in 1997, including one for
possession with intent to deliver cocaine. After the District Court denied Sanders’s
motion to suppress, the parties entered into a written plea agreement, whereby Sanders
pled guilty to the sole count of the indictment. In the plea agreement, Sanders
“voluntarily and expressly waived all rights to appeal … his conviction, sentence, or any
other matter relating to [his] prosecution” with the limited rights reserved to appeal the
District Court’s denial of the motion to suppress and the District Court’s sentencing.
The Sentencing Guidelines recommended a sentencing range of 57-71 months;
however, the provisions of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) provided for a
mandatory minimum of 10 years’ imprisonment and maximum of life imprisonment due
to Sanders’s prior conviction for a felony drug offense. At the change of plea hearing,
the District Court informed Sanders that he was facing a mandatory 10 year sentence in
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accordance with the plea agreement. The Court also advised and confirmed that Sanders
understood the scope and conditions of his express waiver of his rights to appeal. In May
2008, Sanders was sentenced to 10 years’ imprisonment, 8 years’ supervised release, a
$5,000 fine, and a $100 special assessment.
Five days after sentencing, Sanders’s attorney filed a Notice of Appeal and,
thereafter, a motion to withdraw as counsel in the case. The District Court granted the
motion to withdraw and ordered new counsel to be appointed. Newly appointed counsel
also filed a motion to withdraw and a supporting brief pursuant to Anders v. California,
386 U.S. 738 (1967), expressing his belief that Sanders’s “appeal present[ed] no issue of
even arguable merit.” Sanders did not file a brief.
II. Discussion1
Under Anders v. California, 386 U.S. 738 (1967), counsel may seek to withdraw
from representing an indigent criminal defendant on appeal if there are no nonfrivolous
issues to appeal. United States v. Marvin, 211 F.3d 778, 779 (3d Cir. 2000). We exercise
plenary review to determine whether there are any such issues. See Penson v. Ohio, 488
U.S. 75, 80 (1988) (“[T]he appellate court … must … itself … decide whether the case is
wholly frivolous.” (internal quotation marks and citation omitted)). Whether an issue is
frivolous is informed by the standard of review for each potential claim raised. See
United States v. Schuh, 289 F.3d 968, 974-76 (7th Cir. 2002).
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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We implement Anders through our Local Appellate Rule (“L.A.R.”) 109.2(a),
which provides, in relevant part, as follows:
Where, upon review of the district court record, counsel is persuaded that
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 panel agrees that the
appeal is without merit, it will grant counsel’s Anders motion, and dispose
of the appeal without appointing new counsel.
3d Cir. L.A.R. 109.2(a) (2010). We ask two principal questions when counsel proceeds
under Anders: whether counsel has “adequately fulfilled” the requirements of L.A.R.
109.2(a), and whether an independent review of the record presents any nonfrivolous
issues. United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).
With respect to the first question, the fulfillment of the requirements of L.A.R.
109.2(a) often turns, as it does here, on the adequacy of counsel’s supporting brief. To be
adequate under L.A.R. 109.2(a), an Anders brief must (1) “satisfy the court that counsel
has thoroughly examined the record in search of appealable issues,” Youla, 241 F.3d at
300; (2) identify issues that might arguably support appeal, see Smith v. Robbins, 528
U.S. 259, 285 (2000); and (3) “explain why th[ose] issues are frivolous[,]” Marvin, 211
F.3d at 780. “Counsel need not raise and reject every possible claim[,]” but he or she
must still conscientiously examine the record. Youla, 241 F.3d at 300.
With respect to the second question, we review the record to determine whether
the appeal “lacks any basis in law or fact.” McCoy v. Court of Appeals of Wisconsin, 486
U.S. 429, 438 n.10 (1988). When the Anders brief is adequate, we confine our review to
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portions of the record implicated by the Anders brief. Youla, 241 F.3d at 301. When the
Anders brief is inadequate, we may expand our review to portions of the record
implicated in the defendant’s pro se brief or other filings that provide “guidance
concerning the issues [the defendant] wishes to raise on appeal.” Id. Regardless of the
adequacy of the Anders brief, we may affirm the District Court without appointing new
counsel if we find, after reviewing the record, that the “frivolousness [of the appeal] is
patent.” United States v. Coleman, 575 F.3d 316, 321 (3d Cir. 2009) (internal quotation
marks omitted).
A. Adequacy of the Anders Brief
The Anders brief identifies four potentially appealable issues: whether the
sentence exceeded the statutory maximum; whether the District Court erroneously
departed upward from the Sentencing Guidelines; whether the District Court abused its
discretion by imposing an unreasonable sentence above the Sentencing Guideline range;
and whether the District Court erred in denying Sanders’s motion to suppress.
Particularly in light of the plea agreement’s limitations on Sanders’s appeal rights, the
Anders brief demonstrates that counsel adequately examined the record and properly
identified each issue which might arguably support an appeal. Furthermore, we are
satisfied that counsel accurately explained in the Anders brief why the issues on appeal
are frivolous. Accordingly, we conclude that counsel’s Anders brief is adequate.
B. No Nonfrivolous Issues
Because the Anders brief is adequate, we limit our review to the portions of the
record implicated by the Anders brief.
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1. Sanders’s Sentence
We review de novo a District Court’s interpretation of the Sentencing Guidelines
and scrutinize for clear error any findings of fact used in calculating the sentence. United
States v. Wood, 526 F.3d 82, 85 (3d Cir. 2008). Because Sanders had a prior conviction
for a felony drug offense, he faced a mandatory minimum term of 10 years’
imprisonment and maximum term of life imprisonment. 21 U.S.C. § 841(b)(1)(B).2 The
10 year sentence imposed by the District Court was within the statutorily prescribed
guideline range, and was, in fact, the minimum permitted. Any issue raised with respect
to Sanders’s sentence would thus be frivolous.
2. Denial of Motion to Suppress
We review the denial of a motion to suppress for clear error as to the underlying
facts and conduct plenary review of the District Court’s application of the law to those
facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002). In denying Sanders’s
motion to suppress, the District Court found the testimony of the arresting officer about
Sanders’s traffic violation to be credible. Accordingly, the District Court upheld the
subsequent seizure of narcotics that the officers observed in plain view.
A police officer may lawfully stop a motorist if the officer observes a violation of
a state traffic regulation. See Whren v. United States, 517 U.S. 806, 810 (1996) (holding
that “the decision to stop an automobile is reasonable where the police have probable
2
See U.S.S.G. § 5G1.1(b) (“Where a statutorily required minimum sentence is
greater than the maximum of the applicable guideline range, the statutorily required
minimum sentence shall be the guideline sentence.”).
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cause to believe that a traffic violation has occurred”). Once lawfully detained, an officer
may then seize any incriminating evidence that is in plain view. See Horton v.
California, 496 U.S. 128, 141 (1990) (“[T]he seizure of an object in plain view does not
involve an intrusion on privacy.”).
Here, the record clearly establishes that the arresting officers observed Sanders
violate the Pennsylvania Vehicle Code when he failed to use a turn signal while changing
lanes. Sanders has presented no evidence to counter the officers’ observations.
Therefore, the arresting officers were authorized to stop and detain Sanders in order to
investigate the traffic violation. While doing so, the officers observed in plain view a
package that contained a large quantity of white powder and they lawfully seized it.
Accordingly, we agree with counsel’s Anders brief that there is no nonfrivolous issue
relating to the District Court’s denial of the motion to suppress.
III. Conclusion
For the foregoing reasons, we grant the motion to withdraw and affirm the District
Court’s judgment.
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