Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-20-2007
USA v. Adderly
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1646
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"USA v. Adderly" (2007). 2007 Decisions. Paper 1591.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 06-1646
UNITED STATES OF AMERICA
v.
JIMMY D. ADDERLY,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
District Court No. 04-CR-549
District Judge: The Honorable Jerome B. Simandle
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
February 13, 2007
Before: SMITH and FISHER, Circuit Judges,
and DIAMOND, District Judge*
(Filed: February 20, 2007)
OPINION
DIAMOND, District Judge.
On July 28, 2004, Jimmy D. Adderly waived prosecution by indictment and
*
The Honorable Gustave Diamond, Senior District Judge for the United
States District Court for the Western District of Pennsylvania, sitting by
designation.
pleaded guilty pursuant to a written plea agreement to a one count information charging
him with possession with intent to distribute heroin, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C). On January 27, 2005, the District Court sentenced Adderly
to, inter alia, 151 months of imprisonment.
During all proceedings in the District Court, Adderly was represented by Attorney
Francis S. Cutruzzula. Although Adderly advised Mr. Cutruzzula that he wished to
appeal his sentence, counsel did not file a notice of appeal. Adderly filed a pro se petition
under 28 U.S.C. § 2255, claiming ineffective assistance of counsel and seeking a court
order which would permit him to appeal his sentence. Current counsel, Anne C. Singer,
was appointed to represent Adderly on the § 2255 petition, which the District Court
granted by order dated February 17, 2006. The order granting the § 2255 petition
required counsel to file a notice of appeal nunc pro tunc on Adderly’s behalf, which was
done.1
Adderly’s counsel concluded that there were no non-frivolous issues to appeal and
filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967),
together with a supporting brief. Consistent with this Court’s local rule, the Anders brief
was served on Adderly and he was advised that he could file an informal response brief.
See Third Circuit L.A.R. 109.2(a). Adderly never filed any such brief. After considering
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We
exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a). See United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).
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the arguments presented by defense counsel, the prosecution agreed that there were no
non-frivolous issues to raise on appeal.
In Anders, the Supreme Court held that the “constitutional requirement of
substantial equality and fair process” necessitates that appellant’s counsel vigorously 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. In United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001), we reiterated that an
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.” Id.
(citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000)).
We have thoroughly reviewed the record in this appeal and we conclude that
defense counsel has satisfied Youla’s requirements. Her brief set forth the factual
background and the procedural history of the case, she explained that the waiver of
indictment and plea hearing and the sentencing hearing conformed with all legal
requirements, and she identified three possible issues for appeal relative to the District
Court’s application of the advisory United States Sentencing Guidelines, and explained
why each issue was frivolous.
We agree with defense counsel that there is no basis to contest the validity of
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Adderly’s waiver of indictment and guilty plea. Our review of the plea colloquy
demonstrates that the District Court complied with the mandates of Federal Rule of
Criminal Procedure 11 and Boykin v. Alabama, 395 U.S. 238 (1969). The District
Court’s plea colloquy was thorough, the constitutional requirements for a valid plea were
established and it was confirmed that Adderly was competent and understood the nature
of the proceeding. Accordingly, we conclude that Adderly’s waiver of indictment and
guilty plea were knowing and voluntary.
Likewise, defense counsel is correct that the sentencing hearing held by the
District Court complied with Federal Rule of Criminal Procedure 32(i), which sets forth
the requirements for sentencing. The District Court confirmed that the parties received
the presentence report, and defense counsel and the government were given the
opportunity to comment on the report and voice any objections. The District Court also
gave defense counsel an opportunity to speak on Adderly’s behalf, and Adderly was
given the chance to address the court. Thus, we conclude there is no basis to contest the
adequacy of the sentencing hearing.
Defense counsel also correctly points out that there are no non-frivolous issues for
appeal concerning the District Court’s application of the career offender provision set
forth in § 4B1.1 of the advisory United States Sentencing Guidelines. Counsel identified
as a possible issue for appeal whether the District Court abused its discretion in refusing
to mitigate Adderly’s sentence based on his argument that career offender status
overstated his criminal history. Counsel correctly notes, however, that this Court lacks
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jurisdiction to review a district court’s decision to deny a downward departure, where, as
here, the district court determines a departure is not warranted. See Cooper, 437 F.3d at
333 (declining to review a district court’s discretionary decision to deny departure).
We also agree with defense counsel that another possible issue for appeal, that is,
whether the District Court erred in applying U.S.S.G. § 4B1.1 because Adderly was not
advised before pleading guilty that the career offender Guideline might apply, lacks merit
because there is no such requirement. The District Court properly advised Adderly at his
plea hearing that the statutory maximum term of imprisonment was 20 years, that it was
not known at that time what his sentence would be, and that the determination of an
appropriate sentence would have to await preparation of the presentence report. The
District Court also explained how the advisory Sentencing Guidelines work. Adderly was
advised about the maximum possible sentence, and his sentence of 151 months
imprisonment was within that maximum, thus we conclude that the District Court did not
err in applying the career offender provision under the advisory Guidelines.
Finally, defense counsel is correct that there is no non-frivolous issue for appeal
based on the two point increase in the advisory Guideline calculation under U.S.S.G. §
2D1.1(b)(1) because Adderly possessed a firearm in relation to the drug crime. As a
result of Adderly’s classification as a career offender, the assessment of those two points
did not otherwise increase his sentence.
In sum, after conducting our own independent review, we find no non-frivolous
issues to raise on appeal. Accordingly, we will grant counsel’s motion to withdraw and
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we will affirm the January 28, 2005 judgment of the District Court. We further certify
that the issues presented in this appeal lack legal merit and thus do not require the filing
of a petition for writ of certiorari with the Supreme Court. Third Circuit L.A.R 109.2(b).
6