Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
11-10-2003
USA v. Wilson
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1319
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 03-1319
UNITED STATES OF AMERICA
v.
JOHN WILSON,
Appellant
___________________
On Appeal from the United States District Court
for the District of Delaware
District Judge: The Honorable Sue L. Robinson
(D.C. No. 02-cr-00027)
_________________________
Submitted pursuant to Third Circuit LAR 34.1(a)
on November 6, 2003
Before: McKEE, SMITH and GREENBERG, Circuit Judges
(Filed: November 10, 2003)
____________________
OPINION OF THE COURT
_____________________
SMITH, Circuit Judge.
John Wilson pleaded guilty to credit card fraud and possession of false federal
identification on July 25, 2002. He was sentenced to thirty three months imprisonment
and ordered to pay restitution in the amount of $41,286.84. Thereafter, Wilson requested
that the District Court dismiss his court-appointed counsel and appoint new counsel to
handle his appeal. The District Court granted Wilson’s request and new counsel was
appointed to prosecute Wilson’s appeal.1 After meeting with Wilson and reviewing the
record and caselaw, Wilson’s counsel moved to withdraw pursuant to Anders v.
California, 386 U.S. 738 (1967).
In Anders, the Supreme Court stated that the “constitutional requirement of
substantial equality and fair process” means that appellate counsel must act as an
advocate for the defendant. 386 U.S. at 744. Thus, counsel’s
role as advocate requires that he support his client’s appeal to the best of his
ability. Of course, if counsel finds his case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request
permission to withdraw. That request must, however, be accompanied by a
brief referring to anything in the record that might arguably support the
appeal.
Id. As we explained in United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001), the
Anders brief must demonstrate that counsel has “thoroughly examined the record in
search of appealable issues,” and it must “explain why the issues are frivolous.”
Accordingly, our inquiry is twofold: (1) whether counsel adequately fulfilled the
requirements of Anders; and (2) “whether an independent review of the record presents
any nonfrivolous issues.” Id. (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir.
2000)); see also Anders, 386 U.S. at 744 (explaining that the court must proceed, “after a
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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full examination of all the proceedings, to decide whether the case is wholly frivolous.”).
If review fails to reveal any nonfrivolous issues, the court “may grant counsel’s request to
withdraw and dismiss the appeal.” Anders, 386 U.S. at 744.
After considering counsel’s Anders brief, we are satisfied that he thoroughly
examined the record for issues of arguable merit and fulfilled the requirements of Anders.
Counsel correctly observed that Wilson’s plea of guilty limited the issues he is entitled to
challenge on appeal to the District Court’s jurisdiction, the validity of the guilty plea, and
the legality of the sentence. United States v. Broce, 488 U.S. 563, 570-75 (1989). As
Wilson’s counsel noted, there is no basis for disputing the District Court’s jurisdiction.
With respect to the validity of W ilson’s guilty plea, counsel fully satisfied his
obligation under Anders. He considered not only whether the guilty plea proceeding
complied with the requirements of Boykin v. Alabama, 395 U.S. 238 (1969), but also
addressed each of the requirements of Federal Rule of Criminal Procedure 11.
Wilson’s sentencing was also conscientiously examined by his appellate counsel.
We agree that the District Court did not err in calculating either the criminal history score
or the amount of the loss. Our review of the record confirms that the District Court had
sufficient evidence to support its computation of Wilson’s criminal history score. The
amount of the loss was based on a stipulation reached between the parties. To be sure,
Wilson expressed some uncertainty at sentencing as to whether he wanted to proceed
based on this stipulation. The District Court offered to continue the proceeding and
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explained what might be the result of such action inasmuch as the stipulation had been
reached midway through the government’s investigation into the number of victims and
the amount of the loss. Wilson responded that he understood and was “prepared to move
forward with sentencing.” Thus, there was sufficient evidence to support the District
Court’s calculation of the amount of loss and there is no plain error.
Counsel advised Wilson of his intention to file an Anders brief and that Wilson
was entitled to file a pro se brief.2 In his informal brief, Wilson also challenges the
amount of the loss and asserts that the District Court erred by refusing to depart
downward based on his psychological history, his health status and his traumatic
childhood. As we explained above, there is no merit to Wilson’s argument with respect to
the amount of loss set forth in the stipulation. There is also no merit to his argument that
the Court’s refusal to depart was plain error. The transcript from the sentencing hearing
2
Counsel’s notice to Wilson is consistent with Local Appellate Rule 109.2(a) of the
Third Circuit which provides:
Where, upon review of the district court record, trial counsel is persuaded that the
appeal presents no issue of even arguable merit, trial counsel may file a motion to
withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738
(1967), which shall be served upon the appellant and the United States. The
United States shall file a brief in response. Appellant may also file a brief in
response pro se. After all the briefs have been filed, the clerk will refer the case to
a merits panel. If the panel agrees that the appeal is without merit, it will grant
trial counsel’s Anders motion, and dispose of the appeal without appointing new
counsel. If the panel finds arguable merit to the appeal, it will discharge counsel,
appoint substitute counsel, restore the case to the calendar, and order supplemental
briefing.
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confirms that the District Judge knew that she had the authority to depart, but chose to
sentence him to the low end of the guideline range as she found it was appropriate in light
of the offenses he had committed. Accordingly, we lack jurisdiction to review this aspect
of W ilson’s sentence. United States v. McQuilkin, 97 F.3d 723, 729 (3d Cir. 1996).
In sum, we agree with counsel’s assessment of Wilson’s appeal. Our own
independent review of the record fails to reveal any nonfrivolous issues for appeal.
Accordingly, we will grant counsel’s motion to withdraw and affirm the judgment of the
District Court entered on January 21, 2003. We certify that the issues presented in the
appeal lack legal merit and thus do not require the filing of a petition for writ of certiorari
with the Supreme Court. 3d Cir. LAR 109.2(b).
______________________________________
TO THE CLERK:
Please file the foregoing Opinion.
/s/ D. Brooks Smith
Circuit Judge
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