Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
4-11-2007
USA v. Collins
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5457
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-5457
____________
UNITED STATES OF AMERICA
v.
MICHAEL COLLINS, a/k/a Mikey,
Michael D. Collins,
Appellants
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 05-cr-00557-5)
District Judge: Honorable Garrett E. Brown, Jr.
____________
Submitted Under Third Circuit LAR 34.1(a)
March 26, 2007
Before: FISHER, JORDAN and ROTH, Circuit Judges.
(Filed: April 11, 2007)
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OPINION OF THE COURT
____________
FISHER, Circuit Judge.
After Michael Collins filed a timely notice of appeal from the District Court’s
entry of a judgment of conviction and sentence, Collins’s appointed counsel filed a brief
and motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). For the
reasons set forth below, we will grant counsel’s Anders motion and affirm the judgment
of the District Court.
I.
As we write only for the parties, who are familiar with the factual context and the
procedural history of the case, we will set forth only those facts necessary to our analysis.
Collins’s conviction stems from an investigation that began in February of 2004, dealing
with the sale of controlled substances in Asbury Park, New Jersey. After an extensive
investigation involving wiretaps, video surveillance and controlled purchases of narcotics,
law enforcement officers arrested Collins. On July 21, 2005, a twelve-count indictment
was filed in the United States District Court for the District of New Jersey charging that
Collins, and others, knowingly and intentionally conspired and agreed to distribute and to
possess with intent to distribute heroin. After extensive proffer meetings, Collins was
offered a cooperative plea agreement.
At a September 7, 2005 plea proceeding, Collins pleaded guilty to Count One of
the indictment, which charged that he knowingly and intentionally possessed with the
intent to distribute at least 100 grams of heroin, a Schedule I narcotic, in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The government agreed to dismiss the remaining
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counts of the indictment, and Collins voluntarily waived the right to file any appeal
pursuant to paragraph 8 of Schedule A of the Plea Agreement. Based on the cooperation
and assistance Collins provided the government upon his arrest, the government also
moved for a downward departure pursuant to U.S.S.G. § 5K1.1. Collins was sentenced to
140 months imprisonment, 5 years supervised release, and a fine of $4,000.
Collins filed a timely notice of appeal. Concluding that there were no non-
frivolous issues to appeal, Collins’s counsel filed a motion to withdraw pursuant to
Anders v. California, together with a supporting brief.
II.
“In Anders, the Supreme Court established guidelines for a lawyer seeking to
withdraw from a case when the indigent criminal defendant he represents wishes to
pursue frivolous arguments on appeal.” United States v. Youla, 241 F.3d 296, 299 (3d
Cir. 2001). In his role as advocate, the “constitutional requirement of substantial equality
and fair process . . . requires that counsel support his client’s appeal to the best of his
ability.” Id. However, if a thorough examination of the record indicates that the client
has no reasonable grounds for appeal, counsel “should so advise the court and request
permission to withdraw.” Anders, 386 U.S. at 744. When so doing, counsel must submit
a brief in support of his request, identifying any issues that might “arguably support the
appeal.” Id.
“The Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines the
Supreme Court promulgated in Anders to assure that indigent clients receive adequate and
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fair representation.” Youla, 241 F.3d at 300. Rule 109.2(a) requires 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,] which shall be served upon the appellant and the United
States.” L.A.R. 109.2(a).
Once counsel has filed an Anders motion and submitted a brief, it is our role to
decide whether the appeal before us is wholly frivolous. Our inquiry is twofold,
considering (1) “whether counsel adequately fulfilled the requirements of [Rule
109.2(a)],” and, (2) “whether an independent review of the record presents any
nonfrivolous issues.” Youla, 241 F.3d at 300 (citing United States v. Marvin, 211 F.3d
778, 780 (3d Cir. 2000)).
A.
Under the first prong of a Rule 109.2(a) inquiry, counsel must present sufficient
information “to satisfy the court that counsel has thoroughly examined the record in
search of appealable issues, and . . . to explain why the issues are frivolous.” Id. at 300.
After thoroughly reviewing the record in this appeal, we conclude that counsel has
satisfied the requirements of Rule 109.2(a).
Although counsel need not raise and reject every possible claim, he must “provide
sufficient indicia that he thoroughly searched the record and the law in service of his
client so that we might confidently consider only those objections raised.” Id. (internal
quotation marks and citations omitted). In his brief, counsel identified two possible
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issues for appeal and submitted a review of the law and an appendix with the salient
portions of the record. Such a compilation demonstrates that counsel thoroughly searched
the record and the law in service of his client. Furthermore, counsel has set forth in his
brief why the two issues raised are frivolous.
B.
After satisfying ourselves that the first prong of our Rule 109.2(a) inquiry has been
met by counsel’s thorough examination of the record, we must review the record and
determine whether there exist any non-frivolous issues for appeal. An appeal as a matter
of law is frivolous where “none of the legal points [are] arguable on their merits.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). In Youla, we adopted the approach of the
Unites States Court of Appeals for the Seventh Circuit in United States v. Wagner, 103
F.3d 551 (7th Cir. 1996), to determine “how deeply the appellate courts must explore the
record to determine whether” the appeal is wholly frivolous. Youla, 241 F.3d at 301. We
rejected a “complete scouring of the record” and held that “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. (internal quotation marks
and citations omitted). Because the Anders brief filed here by counsel is adequate on its
face, we are accordingly guided by that brief.
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Initially, it is important to note that Collins’s guilty plea limits the issues he may
raise on appeal to challenging the validity of his indictment or guilty plea.1 See Menna v.
New York, 423 U.S. 61, 62 (1975) (citing Blackledge v. Perry, 417 U.S. 21, 30 (1974))
(allowing a challenge to the indictment despite a waiver); Tollett v. Henderson, 411 U.S.
258, 267 (1973) (allowing a challenge to the voluntariness of the plea).
First, there are no non-frivolous issues regarding the constitutionality of Collins’s
indictment. See Menna, 423 U.S. at 62 (citing Blackledge, 417 U.S. at 30).
Second, we agree with counsel that there is no colorable claim with respect to the
validity of the plea. For a plea to withstand a challenge on review, it must meet both the
statutory requirements of Federal Rule of Criminal Procedure 11 and the constitutional
requirements as set forth in Boykin v. Alabama, 395 U.S. 238 (1969). A review of the
plea colloquy demonstrates that the District Court properly questioned and advised
Collins as to his rights, took affirmative steps “to ensure that the plea was intelligent and
voluntary,” and determined the factual basis for the plea pursuant to Boykin and Federal
Rule of Criminal Procedure 11. See Boykin, 395 U.S. at 242.
As to any potential claim that the District Court erred in its sentencing, we agree
with counsel that no non-frivolous issue for appeal exists. Collins was properly found to
1
“Waivers of appeals, if entered into knowingly and voluntarily, are valid.” United
States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2007). The plea hearing transcript
demonstrates that Collins entered into his plea agreement knowingly and voluntarily and
we find that such a waiver does not work a miscarriage of justice. We therefore hold that
the waiver of appellate rights is valid.
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be a career offender under U.S.S.G. § 4B1.1(a). The District Court sentenced Collins to
140 months imprisonment and, upon release, he will be place on supervised release for a
period of 5 years. This sentence represents a discretionary downward departure, pursuant
to the government’s § 5K1.1. motion, from the otherwise applicable Sentencing
Guidelines range of 188 to 235 months. We find no problem with the sentencing
procedure used by the District Court.
Finally, as to any potential appeal that the extent of the downward departure was
insufficient, we lack jurisdiction to review the extent of a district court’s departure under
§ 5K1.1 unless it is imposed in violation of law. United States v. McKnight, 448 F.3d
237, 238 (3d Cir. 2006). Collins’s sentence was not imposed in violation of law, and we
therefore may not review the District Court’s decision.
In sum, after conducting our own review, we find no non-frivolous issues to raise
on appeal For this reason, we will grant defense counsel’s Anders motion and affirm the
sentence imposed by the District Court.2
2
As a result, we conclude that it is not necessary to appoint counsel to file a
petition for rehearing in this Court or a petition for writ of certiorari in the United States
Supreme Court on Collins’s behalf. See L.A.R. 109.2(b).
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