Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-1-2008
USA v. Alvin Simmons, Jr.
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2129
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"USA v. Alvin Simmons, Jr." (2008). 2008 Decisions. Paper 928.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 06-2129
__________
UNITED STATES OF AMERICA
v.
ALVIN R. SIMMONS, Jr.,
Appellant
__________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(No. 04-cr-00278)
District Judge: Hon. Donetta W. Ambrose
__________
Submitted Under Third Circuit LAR 34.1(a)
June 10, 2008
Before: AMBRO, CHAGARES, and GREENBERG, Circuit Judges.
_________
(Filed: July 1, 2008)
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OPINION OF THE COURT
__________
CHAGARES, Circuit Judge.
Alvin Simmons filed a pro se appeal from his sentence for bank fraud, and his
counsel has petitioned for permission to withdraw from representation under Anders v.
California, 386 U.S. 738 (1967). For the reasons that follow, we will affirm Simmons’
sentence and will grant the Anders motion.
I.
In 2003, Simmons obtained a fake identification document in Ohio and used it to
open a bank account in Pennsylvania. He then deposited a check into the account that had
been drawn off of another, closed, bank account, and wrote checks and made withdrawals
from the fraudulently-opened account. On October 26, 2004, a grand jury charged
Simmons with two counts of bank fraud, in violation of 18 U.S.C. § 1344, and one count
of fraud in connection with identification documents, in violation of 18 U.S.C. §
1028(a)(7). On November 25, 2005, Simmons pled guilty to one count of bank fraud
pursuant to a written plea agreement that included an appellate waiver. A pre-sentence
report determined Simmons’ Sentencing Guidelines range to be 24-30 months. On
February 27, 2006, the District Court sentenced Simmons to 24 months, the bottom of
that range. Simmons subsequently filed a one-page, pro se appeal, and his counsel has
petitioned to withdraw and filed a supporting brief.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Evaluation of an Anders brief requires a twofold inquiry: (1) whether counsel has
thoroughly examined the record for appealable issues and has explained why any such
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issues are frivolous; and (2) whether an independent review of the record presents any
nonfrivolous issues. See United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).
Where the Anders brief appears adequate on its face, our review is limited to the portions
of the record identified in the brief, along with any issues raised by an appellant in a pro
se brief. See id. at 301. We conclude that the brief in this case is adequate – indeed, it is
exhaustive – and thus it will guide our independent review of the record.
As his counsel acknowledges, Simmons is precluded from bringing an appeal due
to the waiver contained in his plea agreement. “Waivers of appeals, if entered into
knowingly and voluntarily, are valid, unless they work a miscarriage of justice.” United
States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001). Under the terms of Simmons’ plea
agreement, Simmons waived, inter alia, his right to appeal under 18 U.S.C. § 3742 or on
any other grounds, subject to three exceptions: (1) Simmons could appeal in the event of
a Governmental appeal; (2) Simmons could appeal if his sentence exceeded the statutory
limits for his crime; or (3) Simmons could appeal if his sentence “unreasonably exceeds
the guideline range determined by the [District] Court under the Sentencing Guidelines.”
(JA 17 (Plea Agmt. ¶ 6).)
A review of the Change of Plea hearing transcript demonstrates that the waiver
was valid, knowing, and voluntary. The District Court had the appellate waiver
provisions of the plea agreement read into the record during its Federal Rule of Criminal
Procedure 11 colloquy and again reminded Simmons of the waiver provisions at
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sentencing. Simmons does not indicate any reason why the waiver of appeal should not
be enforced, and neither he nor his counsel identify any potential error amounting to a
miscarriage of justice. Our independent review of the record yields no non-frivolous
arguments that could possibly support an appeal in light of Simmons’ waiver.
III.
Accordingly, we will affirm the District Court’s judgment of conviction and
sentence and, in a separate order, will grant counsel’s motion to withdraw.
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