Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
10-23-2003
USA v. Schaeffer
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-1291
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 02-1291
UNITED STATES OF AMERICA
v.
KEITH SCHAEFFER,
Appellant
On Appeal from the United States District Court
for Eastern District of Pennsylvania
(D.C. No. 01-cr-00093-8)
District Judge: Hon. Stewart Dalzell
Submitted Under Third Circuit LAR 34.1(a)
October 14, 2003
Before: SLOVITER, ROTH, and CHERTOFF, Circuit Judges
(Filed October 23, 2003)
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Keith Schaeffer pled guilty to three counts of a 32-count indictment returned
against him and his eight co-defendants. The counts to which Schaeffer pled guilty were
(1) conspiracy to operate a “chop shop” and to remove and alter Vehicle Identification
Numbers (VINs) and to possess vehicles with altered VINs with intent to sell, in violation
of 18 U.S.C. § 371 (Count 1), (2) illegally altering and removal of a VIN from a
motorcycle and aiding and abetting, in violation of 18 U.S.C. §§ 511 and 2 (Count 2), and
(3) possession of motorcycles with altered VINs with the intent to sell and aiding and
abetting, in violation of 18 U.S.C. § 2321 and 2 (Count 18).
Schaeffer entered into a written plea agreement that gave the Government the
discretion to make whatever sentencing recommendation it deemed appropriate and gave
it the right to comment on the evidence and circumstances of the case and to bring to the
court’s attention all facts relevant to sentencing. Schaeffer and the Government entered
into a number of stipulations under the Sentencing Guideline Manual, effective
November 1, 1998, which included a stipulation that Schaeffer’s base offense level was 8;
the retail value of the motor vehicles and parts exceeded $70,000 but was less than
$120,000, thereby increasing Schaeffer’s adjusted offense level by six; the loss was
caused in furtherance of the criminal activity jointly undertaken by Schaeffer and his co-
conspirators and was within the scope of the defendant’s agreement, and the amount of
the loss was reasonably foreseeable to Schaeffer in connection with the conspiracy; and
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his guideline range should be calculated based on this amount pursuant to Guideline
section 1B1.3.
The parties also stipulated that Schaeffer was in the business of receiving and
selling stolen property, which increases the adjusted offense level by two. However, he
was given credit for acceptance of responsibility which entitled him to a two-level
reduction. Because he had assisted authorities in the investigation and prosecution of his
own misconduct, Schaeffer was given an additional one-level downward adjustment. The
Government had not undertaken to file a § 5K1.1 motion, and did not do so. The District
Court accepted the presentence investigation report (PSI). Schaeffer was sentenced to 22
months’ imprisonment, which was within the applicable guideline range of 18 to 24
months.
Counsel for Schaeffer has filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967). Under Anders, if counsel is convinced after conscientious investigation that
the appeal is frivolous, counsel may properly ask to withdraw while filing a brief referring
to anything in the record that might arguably support the appeal. See id. at 741-42, 744.
To satisfy the Anders requirements, appellant’s counsel 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.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000).
In this case, counsel has concluded that there are not properly presented and
preserved issues on which he could reasonably base an argument to secure meaningful
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appellate review and/or relief for Schaeffer. He notes that Schaeffer essentially asserts
three claims for appeal: that he should receive a reduction for being a minor participant in
the conspiracy; that he should be entitled to a § 5K1.1 motion for reduction of sentence
because he cooperated with the Pennsylvania State Police; and that the amount of the
restitution for which he should be held responsible is one-fourth of the amount imposed
by the court.
As noted in the Anders brief, Schaeffer’s counsel did not file an objection to the
PSI nor did he raise any issue regarding the applicable sentencing guidelines. Counsel
explains why the issues that Schaeffer asserts would not be persuasive. Counsel has
therefore fulfilled his obligation under Anders to assert the relevant issues and explain his
reasons why they are not persuasive.
Schaeffer, as authorized under Anders, has filed a pro se brief to be considered in
addition to that filed by counsel. After Schaeffer received the Government brief,
Schaeffer filed a responsive brief in which he withdrew several of the arguments raised in
his initial pro se brief but emphasizes four arguments. Counsel’s brief and Schaeffer’s
two briefs, taken together, are sufficient to guide our review of the record.
In Schaeffer’s responsive brief, he contends first that the amount of restitution that
the court ordered him to pay should be divided equally between him and his co-
defendants who participated in the theft of the five motorcycles for which he was
indicted. We find this argument unpersuasive.
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The District Court imposed a direction that Schaeffer pay restitution in the amount
of $40,695 because Schaeffer was involved in the theft of five separate motorcycles.
Although he pled guilty only to charges for two incidents of motorcycle theft, we have
held that a district court may hold each co-conspirator jointly and severally liable for the
full amount of the loss in order to permit victims to recover losses for all or some of the
defendants. See United States v. Diaz, 245 F.3d 294, 312 (3d Cir. 2001); United States v.
Hunter, 52 F.3d 489, 494-95 (3d Cir. 1995). The value of the five motorcycles in the list
presented to the District Court totaled $40,695. Although the District Court did not
expressly state that its restitution order as to Schaeffer was based on its imposition of
joint and several liability, it is evident that it was because the PSI, which the Court
adopted, as well as Schaeffer’s guilty plea agreement stated that the fraud loss was caused
in furtherance of jointly undertaken criminal activity by Schaeffer and his co-conspirators
and was reasonably foreseeable. Nonetheless, as we are remanding, we will direct the
District Court to make explicit its intention with respect to joint and several liability.
Next, Schaeffer argues in his pro se brief that the District Court committed plain
error by failing to find that his prior offenses of August 1997 were related. Essentially,
this argument is that the PSI incorrectly assessed three criminal history points for his prior
offenses described in ¶¶ 37, 38 and 39 of the PSI. Schaeffer claims that these offenses
stem from the same arrest and therefore they should have been assessed only one point,
not three. Initially the Government argued that there was no error because under our
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precedent in United States v. Hallman, 23 F.3d 821, 824-25 (3d Cir. 1994), prior
sentences are by definition unrelated for purposes of § 4A1.2 if the offenses were
separated by an intervening arrest. The Government concedes, after examining the
criminal files for these cases in Berks County, that the offenses were not separated by
intervening arrests as the PSI indicates. Therefore, Schaeffer is correct in his argument
that he should be assessed only one, not three, criminal history points. The Government
argues that this would not change Schaeffer’s criminal history category because he would
remain in criminal history category III.
However, Schaeffer argues that his criminal history category would indeed change
because he was assigned one point toward his criminal history for harassment when he
should not have been. Schaeffer’s theory is that harassment is a summary offense which
carries only a $300 fine rather than any probation or incarceration. The Government
responds that under § 4A1.2(c) of the Sentencing Guidelines, all sentences for
misdemeanors and petty offenses are to be counted, with the exception of certain listed
offenses “and offenses similar to them.” The offense of harassment is not specifically
listed as one of the exceptions. Thus, the question is whether it is “similar” to one of the
listed exceptions. We note that this court in United States v. Elmore, 108 F.3d 23 (3d Cir.
1997), found that harassment (under Pennsylvania law) was not similar to the listed
offense of disorderly conduct.
The Government argues that the crimes that are on the list are not directed against
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other persons or crimes of violence, such as the crime of disorderly conduct, or public
order offenses. It therefore argues that the District Court properly counted Schaeffer’s
harassment offense in calculating his criminal history. We believe that the issue is not as
clear cut as the Government asserts. Some of the listed offenses could be directed at
other persons, such as resisting arrest or certain motor vehicle violations. The District
Court did not consider this issue because Schaeffer pled guilty. We believe that this issue
should be considered in the first instance by the District Court, which can, if appropriate,
revise Schaeffer’s sentence accordingly.
Finally, Schaeffer claims ineffective assistance of counsel. As this court has stated
numerous times, we generally do not hear claims of ineffective assistance of counsel on
direct appeal as the record on that issue is ordinarily incomplete. See United States v.
Thornton, 327 F.3d 268, 271 (3d Cir. 2003).
Accordingly, for the reasons set forth above, we will affirm the judgment of
conviction but will remand this matter to the District Court for its reconsideration of the
judgment of sentence. We offer no opinion on the latter.
TO THE CLERK:
Please file the foregoing opinion.
/s/ Dolores K. Sloviter
Circuit Judge
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