Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
6-18-2004
USA v. Washington
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2656
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
NO. 03-2656
_______________
UNITED STATES OF AMERICA
v.
BILLY WASHINGTON aka BILLY JACOBS
WILLIAM WASHINGTON,
Appellant
_______________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
No. 93-CR-00138-15
District Judge: James McGirr Kelly
_______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 28, 2004
BEFORE: RENDELL and COW EN, Circuit Judges, and
SCHWARZER,* Senior District Judge
(Opinion Filed: June 18, 2004)
*
The Honorable William W Schwarzer, Senior United States District Judge for the
Northern District of California, sitting by designation.
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_______________________
OPINION OF THE COURT
_______________________
SCHW ARZER, Senior District Judge.
William Washington timely appeals an order revoking his supervised
release and imposing a nine-month term of imprisonment and a new term of supervised
release. His counsel has filed an Anders brief asserting that Washington’s appeal raises
no nonfrivolous issues and moving to withdraw. The district court had jurisdiction
pursuant to 18 U.S.C. § 3231 and we have jurisdiction pursuant to 18 U.S.C. § 3742(a)
and 28 U.S.C. § 1291. We will dismiss the appeal and grant the motion.
FACTUAL AND PROCEDURAL HISTORY
Washington’s probation officer alleged six violations of the conditions of
Washington’s supervised release in his report and amended report. First, the report stated
that police had taken Washington into custody on January 5, 2003, and that Washington
later lied about this event to the probation officer in violation of Condition #3 of his
supervised release. Second, the report alleged that Washington had failed to notify the
probation officer of his change of address. Third, the report stated that Washington had
submitted urine samples that tested positive for cocaine. Fourth, the report charged that
Washington had associated with people who were engaged in criminal activity or known
to be felons. Fifth, the amended report alleged that Washington had committed a crime
(assault) while on probation. Sixth, the amended report stated that Washington had
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submitted other urine samples that tested positive for cocaine.
Washington admitted to having tested positive for cocaine use. He
contested the other allegations. After hearing testimony by the probation officer, the
court found that Washington had lied to the officer when he denied being apprehended by
the police.
The court found Washington guilty of three violations of the terms of his
supervised release: the two drug-test failures, and the lie to the probation officer. Each
offense was a type “C” violation under U.S.S.G. § 7B1.4, so each carried a possible term
of imprisonment of three to nine months. The court imposed a sentence of nine months in
prison, and added a new term of supervised release.
ANALYSIS
Third Circuit Local Appellate Rule 109.2(a) provides that “[w]here, 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)].” When considering an
Anders motion, we must “decide whether the case is wholly frivolous.” United States v.
Youla, 241 F.3d 296, 299 (3d Cir. 2001). Our inquiry is “twofold: (1) whether counsel
adequately fulfilled [Rule 109.2(a)]’s requirements; and (2) whether an independent
review of the record presents any nonfrivolous issues.” Id. at 300.
“The duties of counsel when preparing an Anders brief are (1) to satisfy the
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court that counsel has thoroughly examined the record in search of appealable issues, and
(2) to explain why the issues are frivolous.” Id. “Counsel need not raise and reject every
possible claim . . . [h]owever, at a minimum, he or she must” conscientiously examine
the record for appellate issues. Id.
Here, counsel’s brief is inadequate. Like the brief we found inadequate in
Youla, id. at 300, counsel’s brief is only two pages in length and contains no citations to
case law. The analysis is confined to the propriety of the district court’s determination
that Washington lied to the probation officer. Counsel makes essentially no attempt to
discuss potential errors in the findings about the failed drug tests, and makes no attempt to
discuss possible issues concerning the sentence imposed by the court.
Nonetheless, we dismiss Washington’s appeal because it is patently
frivolous. See id. at 300 (stating that we should accept inadequate Anders briefs “in those
cases in which frivolousness is patent”). We are guided in our review of the record by
Washington’s informal pro se brief. See id. at 301. Washington raises several issues, but
all are patently frivolous.
A. Association With Know n Criminals
Washington attacks the probation officer’s charge that he associated with
known criminals. As the district court did not find Washington guilty of this violation,
the challenge is moot.
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B. Factual Basis for Finding that Washington
Lied to His Probation Officer
Washington also argues that the court improperly found that he lied to his
probation officer about being detained by the police. He argues that he thought he could
report the incident in a monthly report and thus did not have to discuss it with the
probation officer. But the probation officer testified that he asked Washington a direct
question about whether he had been detained, which Washington answered in the
negative. Because even Washington admits that he was detained, his response was
clearly false and the district court’s finding is not subject to attack.
C. Abstinence from Drug Use
Washington also contends that other than the times he tested positive for
cocaine use, he abstained from using drugs. This assertion has no legal relevance; he was
reincarcerated only as a result of the positive drug tests.
D. Ineffective Assistance of Counsel
Washington next asserts that his counsel provided ineffective assistance in
the district court. Because we do not consider ineffective assistance of counsel claims on
direct review, United States v. Thornton, 327 F.3d 268, 271-72 (3d Cir. 2003), this
argument is patently frivolous.
E. Imposition of Imprisonment Rather Than Drug Abuse
Treatment
Washington further argues that the court erred because it did not consider
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whether to place him in drug treatment rather than prison upon finding that he failed drug
tests. 18 U.S.C. § 3583(g) generally mandates that courts impose a prison term for drug-
related probation violations. But Washington notes that 18 U.S.C. § 3583(d) states:
The court shall consider whether the availability of
appropriate substance abuse treatment programs, or an
individual’s current or past participation in such programs,
warrants an exception in accordance with United States
Sentencing Commission guidelines from the rule of section
3583(g) when considering any action against a defendant who
fails a drug test.
And he points to United States v. Pierce, 132 F.3d 1207 (8th Cir. 1997), where the court
observed that a district court has discretion under § 3583(d) to impose treatment rather
than imprisonment, and held that a failure to recognize that discretion requires a remand
for re-sentencing. Id. at 1208-09. Washington asserts that the district court here did not
recognize its discretion.
Regardless of the merits of this argument, the issue is frivolous because it is
no longer cognizable by a federal court. Washington has already been released from
prison. As the imposition of prison rather than drug treatment has no apparent ongoing
collateral consequences, the issue is moot. See United States v. Kissinger, 309 F.3d 179,
181-82 (3d Cir. 2002) (holding that where an appellant has already served his sentence,
and the sentence has no collateral consequences, an appeal of the terms of the sentence is
moot).
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F. Lack of Grand Jury Indictment
Finally, Washington argues that his nine-month prison sentence violated the
Fifth Amendment because he was not indicted by a grand jury. But “[v]iolation of
supervised release is a separate offense” from the underlying crime, United States v.
Blackston, 940 F.2d 877, 881 n.7 (3d Cir. 1991), and the Fifth Amendment requires the
federal government to proceed by indictment only when charging someone with “a
capital, or otherwise infamous crime.” U.S. C ONST. amend. V. A crime is not infamous
if it is not punishable by imprisonment in a penitentiary, Green v. United States, 356 U.S.
165, 183 (1958), and, under 18 U. S. C. § 4083, no one may be imprisoned in a
penitentiary unless their offense is punishable by more than a year in prison.
Washington’s offenses carried maximum prison terms of nine months, so they were not
infamous crimes. The Fifth Amendment’s grand jury provisions are not implicated.
CONCLUSION
For the reasons stated above, Washington’s appeal will be DISMISSED
pursuant to Third Circuit Local Appellate Rule 109.2(a) and the motion to withdraw is
GRANTED.
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