Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
1-18-2007
USA v. Kinnard
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1514
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"USA v. Kinnard" (2007). 2007 Decisions. Paper 1765.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-1514
UNITED STATES OF AMERICA,
Appellee,
v.
ERIC KINNARD,
Appellant.
On Appeal from the Sentence of the United States District Court
for the Middle District of Pennsylvania
and Petition to Withdraw from Representation
(D.C. No. 05-cr-0337)
District Judge: Honorable Christopher C. Conner
Submitted Under Third Circuit LAR 34.1(a)
January 8, 2007
Before: SLOVITER, RENDELL, Circuit Judges, and IRENAS,* Senior District Judge.
(Filed: January 18, 2007 )
*
Honorable Joseph E. Irenas, Senior United States District Judge for the District of
New Jersey, sitting by designation.
OPINION
IRENAS, Senior United States District Judge.
Eric Kinnard appeals his sentence of 105 months imposed after he pleaded guilty
to distribution and possession with intent to distribute heroine in violation of 21 U.S.C.
§ 841(a)(1). Kinnard’s counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), along with a Petition to Withdraw from Representation of the
Appellant. Kinnard was notified of his right to submit a pro se brief in support of his
appeal but has not done so. For the reasons set forth below, we will affirm the
sentencing order and grant counsel’s request to withdraw.
I.
Pursuant to a written plea agreement with the United States, Kinnard pleaded
guilty to one count of distribution and possession with intent to distribute heroine on
October 28, 2005. At the sentencing hearing, Kinnard moved for a downward departure,
asserting that his criminal history category of VI overstated the seriousness of his
previous offenses. The United States also moved for a downward departure based on
Kinnard’s substantial assistance in the investigation and prosecution of other offenders.
The district court denied Kinnard’s motion and granted the United States’ motion.
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The court concluded that Kinnard’s criminal history category did not substantially
overrepresent the seriousness of his criminal history or the likelihood that he will commit
other crimes. Specifically, the court noted that Kinnard had nine convictions since 1993
and three prior convictions for crimes of violence.
With respect to the United States’ motion, the court noted that Kinnard cooperated
“very well” with law enforcement. The court granted the motion, departing downward
five levels, even though the United States sought only a three level departure. Taking
into account the departure, the court determined that Kinnard’s offense level was 24, his
criminal history was 6, and the guideline range was 100 to 125 months. The court then
imposed a sentence of 105 months. Kinnard timely filed a notice of appeal.
II.
The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise
jurisdiction over the sentencing order pursuant to 28 U.S.C. § 1291 and over the final
sentence pursuant to 18 U.S.C. § 3742(a).
Pursuant to Third Circuit Local Appellate Rule 109.2(a), if trial counsel reviews
the district court record and “is persuaded that the appeal presents no issue of even
arguable merit, trial counsel may file a motion to withdraw and supporting [Anders]
brief.” Third Circuit L.A.R. 109.2(a). In considering counsel’s submission, we must
examine: (1) “whether counsel fulfilled the rule’s requirements;” and (2) “whether an
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independent review of the record presents any nonfrivolous issues.” United States v.
Youla, 241 F.3d 296, 300 (3d Cir. 2001). 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 “explain why the issues are frivolous.” United
States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000).
First, we find that Appellant’s counsel’s brief, along with the Petition to Withdraw
from Representation, adequately demonstrate that counsel has reviewed the record for
appealable issues and explained why those issues are frivolous. Second, after our own
independent analysis of the record, we agree with counsel’s analysis that this appeal
presents no non-frivolous issues.
We see two possible issues. First, Kinnard might challenge the district court’s
refusal to downwardly depart on his criminal history category. However, even before
United States v. Booker, 543 U.S. 220 (2005), “we declined to review discretionary
decisions to deny departures,” United States v. Cooper, 437 F.3d 324, 332 (3d Cir.
2006), and Booker did not alter that precedent. Cooper, 437 F.3d at 333.
Second, Kinnard might challenge his sentence as unreasonable under Booker.
The sentencing transcript makes clear, however, that the district court addressed the
factors found in 18 U.S.C. § 3553(a) (see App. at p. 21), and imposed a sentence that was
within the applicable guideline range. See Cooper, 437 F.3d at 331 (“it is less likely that
a within-guidelines sentence, as opposed to an outside-guidelines sentence, will be
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unreasonable.”). Indeed, Kinnard’s sentence was at the lower end of the applicable
guideline range and significantly lighter than the sentence recommended by the
government.
Accordingly, the sentence will be affirmed and counsel’s Petition granted.
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