Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-4-2009
USA v. Corey McGill
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-4070
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"USA v. Corey McGill" (2009). 2009 Decisions. Paper 1232.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 08-4070
____________
UNITED STATES OF AMERICA
v.
COREY MCGILL,
a/k/a SUPREME,
COREY MCGILL,
Appellant.
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 07-cr-00255)
District Judge: Honorable William H. Walls
____________
Submitted Under Third Circuit LAR 34.1(a)
June 2, 2009
Before: McKEE, HARDIMAN and GREENBERG, Circuit Judges.
(Filed: June 4, 2009)
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OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Corey McGill pleaded guilty to a two-count superseding information charging him
with conspiring to tamper with a witness through force in violation of 18 U.S.C.
§ 1512(k) and knowing possession of a firearm during and in relation to a crime of
violence in violation of 18 U.S.C. § 924(c)(1)(A)(i). The District Court imposed a
within-Guidelines sentence of 211 months imprisonment and McGill filed this timely
appeal.
Counsel for McGill has moved to withdraw pursuant to Anders v. California, 386
U.S. 738 (1968). After receiving a copy of his counsel’s request to withdraw, McGill
declined to submit a pro se brief in response. We will grant counsel’s motion and affirm
the District Court’s imposition of sentence. 1
Because we write exclusively for the parties, who are familiar with the facts and
proceedings below, we will not revisit them here.
When counsel files a motion pursuant to Anders, we determine whether: (1)
counsel adequately fulfilled the Anders requirements, and (2) an independent review of
the record presents any nonfrivolous issues. United States v. Marvin, 211 F.3d 778, 780
(3d Cir. 2000).
To meet the first prong, appointed counsel must examine the record, conclude that
there are no nonfrivolous issues for review, and request permission to withdraw. United
1
We exercise jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a).
2
States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Counsel must accompany a motion to
withdraw with a “brief referring to anything in the record that might arguably support the
appeal.” Anders, 386 U.S. at 744. Counsel need not raise and reject every possible claim,
but must, at a minimum, meet the “conscientious examination” standard set forth in
Anders. Youla, 241 F.3d at 300.
McGill’s counsel filed a motion to withdraw and an Anders brief, asserting that
she “made a thorough and conscientious review of the record” revealing no appealable
issues, because McGill cannot contest the validity of his guilty plea, nor can he identify
any error at sentencing. With specific regard to sentencing, McGill’s counsel notes that
the only possible issue on appeal is that the District Court may have abused its discretion
by choosing not to depart downward pursuant to Section 4A1.3(b) of the United States
Sentencing Guidelines because McGill’s criminal history category substantially
overrepresented the seriousness of his criminal history.
As McGill’s counsel concedes, this argument is without merit. First, we lack
jurisdiction over such discretionary decisions. See United States v. Cooper, 437 F.3d 324,
332 (3d Cir. 2006). Jurisdiction only arises if the district court’s refusal to depart
downward is based on the mistaken belief that it lacks discretion to do so. See United
States v. Dominguez, 296 F.3d 192, 194-95 (3d Cir. 2002). Even assuming arguendo that
jurisdiction lies in this case, the record clearly demonstrates that the District Court
properly considered McGill’s arguments at sentencing concerning his criminal history.
3
The Court calculated McGill’s criminal history category to be VI based on his 22 criminal
history points, and noted that McGill also qualified as a career offender. The District
Court, in great detail, lamented McGill’s extensive criminal history, which includes
convictions for: unlawful possession of a weapon; terroristic threats; mischief; joyriding;
contempt; resisting arrest; threatening to kill; possession with intent to distribute heroin
and cocaine within 1,000 feet of school property; and now, conspiracy to tamper with a
witness by physical force. In light of this extensive criminal record, the court properly
concluded that the career offender classification did not overrepresent McGill’s criminal
history. Because there is “no evidence that the District Court misapplied the sentencing
guidelines or imposed a sentence in violation of the law,” we hold that counsel’s
discussion of the reasons why no appealable issue exists meets the requirements of the
first prong of Anders.
As for the second prong of Anders, we have independently reviewed the record
and we agree with counsel’s comprehensive analysis as to why no appealable issue exists.
The District Court’s lucid analysis of McGill’s prior crimes, his circumstances, and the
goals of sentencing were more than adequate.
Accordingly, we will affirm the judgment of the District Court and, in a separate
order, granting counsel’s motion to withdraw.
4