Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-9-2008
USA v. Clark
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-5221
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-5221
UNITED STATES OF AMERICA
v.
TRACY CLARK
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 01-cr-00428-2)
District Judge: Honorable Robert F. Kelly
Submitted Under Third Circuit LAR 34.1(a)
June 9, 2008
Before: AMBRO, CHAGARES and GREENBERG, Circuit Judges
(Opinion filed June 9, 2008)
OPINION
AMBRO, Circuit Judge
In June 2003, appellant Tracy Clark was convicted by a jury of possession of a
firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He was
ultimately sentenced to a 235-month term of imprisonment and a five-year term of
supervised release. Clark appealed and his counsel, Christopher D. Warren, Esq., filed a
motion to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967).
For the reasons set forth below, we grant that motion and affirm the sentence imposed by
the District Court.1
Because we write solely for the parties, we recite only those facts necessary to our
decision. In December 1999, Philadelphia police officers executed a search warrant on an
apartment, whereupon they apprehended Clark with a loaded .45 caliber semi-automatic
firearm. He was charged with being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1), and the grand jury later returned a superseding indictment charging
that Clark also violated 18 U.S.C. § 924(e). He thereafter pled guilty.
Clark later filed, however, a pro se motion to withdraw the guilty plea, which the
District Court denied. The Court appointed counsel for Clark, and his counsel filed a
second motion to withdraw the guilty plea, which the Court granted in March 2003. The
case went to trial, and Clark was convicted by a jury in June 2003. At sentencing, the
Court determined that Clark’s offense level was 33 and his Criminal History Category
was VI, resulting in an advisory Guidelines range of 235–293 months. The District Court
found that Clark was a danger to the community and sentenced him at the top of the
1
The District Court exercised jurisdiction over this matter pursuant to 18 U.S.C.
§ 3231. We have jurisdiction over this appeal pursuant to 18 U.S.C. § 3742(a) and 28
U.S.C. § 1291. See United States v. Cooper, 437 F.3d 324, 327–28 (3d Cir. 2006).
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Guidelines range to a 293-month term of imprisonment and a five-year term of supervised
release. In October 2004, we affirmed the conviction and sentence. The Supreme Court
denied certiorari in late January 2005.
In January 2006, Clark filed a motion under 28 U.S.C. § 2255 seeking to attack
collaterally his conviction and sentence on the grounds that his counsel had been
ineffective in advising him to withdraw his guilty plea and in failing to seek resentencing
under United States v. Booker, 543 U.S. 220 (2005). The District Court rejected the first
ineffective assistance claim, and, without considering the merits of the second claim,
granted Clark’s request for resentencing under Booker because his judgment was not final
at the time Booker was announced.2 See id. at 268.3
At the resentencing hearing, the District Court calculated Clark’s Guidelines range
2
The Supreme Court handed down its decision in Booker on January 12, 2005 and
denied Clark’s petition for certiorari on January 25, 2005.
3
The District Court’s decision to grant Booker resentencing did not deal with whether
Clark’s counsel had been ineffective. Clark asserted that his counsel was ineffective in
failing to file a letter under Federal Rule of Appellate Procedure 28(j) informing the
Supreme Court of its own decision in Booker. This can hardly serve as the basis for an
ineffectiveness claim because the Federal Rules of Appellate Procedure apply to the
Courts of Appeals and not the Supreme Court. The District Court may have implicitly
rested its decision on Clark’s counsel’s failure to raise the Booker resentencing issue
before the Supreme Court by supplementing the petition for certiorari pursuant to
Supreme Court Rule 15.8, which states in pertinent part that “[a]ny party may file a
supplemental brief at any time while a petition for a writ of certiorari is pending, calling
attention to new cases, new legislation, or other intervening matter not available at the
time of the party’s last filing.” In any event, we need not speculate any further as to why
the District Court granted resentencing because the Government did not challenge that
decision.
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as it had at the initial sentencing. Neither party made any motions for downward
departure. Arguing based on the 18 U.S.C. § 3553(a) factors, Clark’s attorney contended
that Clark should receive a downward variance because of the effect of incarceration on
his children. The Government responded that no downward variance was warranted
because of Clark’s significant criminal history. The District Court considered the
arguments of both parties and ultimately imposed a 235-month term of
imprisonment—which was at the bottom of the advisory Guidelines range—and a five-
year term of supervised release.
After his resentencing, Clark filed an untimely pro se notice of appeal in this Court
and a motion for an extension of the time to appeal in the District Court. The District
Court granted the motion for an extension, retroactively rendering Clark’s notice of
appeal timely. His counsel then filed the Anders motion seeking to withdraw as counsel.
Under Anders, “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.” 386 U.S. at 744. The motion must be accompanied by “a brief referring to
anything in the record that might arguably support the appeal.” Id. “The duties of
counsel when preparing an Anders brief are (1) to satisfy the court that counsel has
thoroughly examined the record in search of appealable issues, and (2) to explain why the
issues are frivolous.” United States v. Youla, 241 F.3d 296, 301 (3d Cir. 2001). A copy
of counsel’s brief must be furnished to the appellant, who must be given time to “raise
any points that he chooses” in a pro se brief. Anders, 386 U.S. at 744; see also Third
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Circuit LAR 109.2(a).
Our review of an Anders motion is two-fold. First, we must satisfy ourselves that
“counsel adequately fulfilled the rule’s requirements.” Youla, 241 F.3d at 300. Next, we
must determine whether “an independent review of the record presents any nonfrivolous
issues.” Id. Where, as here, the Anders brief is adequate on its face, we confine our
independent review to those issues raised in the Anders brief and the appellant’s pro se
brief. Id. at 301.
Clark’s counsel has filed a brief that easily complies with Anders. He thoroughly
described the process of Clark’s resentencing and concluded that there are no meritorious
issues for appeal. Based on our independent review of the record, we agree. In
resentencing Clark, the District Court followed the steps our Court outlined in United
States v. Gunter, 462 F.3d 237 (3d Cir. 2006), and ultimately imposed a within-
Guidelines sentence that satisfies reasonableness review.
In his pro se brief, Clark raises the claim that his counsel was ineffective for
failing to contest the District Court’s determination that his prior convictions qualified as
offenses under the Armed Career Criminal Act, 18 U.S.C. § 924(e), in light of Shepard v.
United States, 544 U.S. 13 (2005). However, we decline to address his ineffective
assistance claim at this time because those claims are “best decided in the first instance in
a collateral action” rather than on direct appeal. United States v. Thornton, 327 F.3d 268,
272 (3d Cir. 2003).
Because there are no nonfrivolous issues for appeal, Clark’s sentence is hereby
5
affirmed, and counsel for Clark is granted leave to withdraw.
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