NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 15-2512
____________
UNITED STATES OF AMERICA
v.
WALTER THOMAS,
Appellant
____________
On Appeal from the United States District Court
for the District of Delaware
(D. Del. No. 1-13-cr-00056-005)
District Judge: Honorable Sue L. Robinson
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 5, 2016
Before: FISHER, RENDELL and BARRY, Circuit Judges.
(Filed: April 26, 2016)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
FISHER, Circuit Judge.
Walter Thomas pleaded guilty to possession with intent to distribute heroin and
was sentenced to 48 months’ imprisonment. Thomas appealed, and defense counsel
moved to withdraw his representation under Anders v. California, 386 U.S. 738 (1967).
We will grant defense counsel’s motion to withdraw and affirm the district court’s
judgment.
I.
We write principally for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts that are necessary
to our analysis.
In May 2013, law enforcement officers intercepted a series of telephone calls
during which Thomas ordered 16 logs of heroin. He later increased his order to 25 logs.
Based on these phone calls, the officers set up surveillance outside the house where the
drug deal was to take place. At the designated time, several persons (including Thomas)
arrived at the house, entered it, and then left. The officers followed Thomas to a nearby
shopping center. Thomas pulled next to another vehicle and handed that driver a white
and pink bag. Both cars drove away. The officers followed the car driven by the recipient
of the white and pink bag and then, during a traffic stop, took the bag from the driver and
found that it was filled with 25 logs (about 50 grams) of heroin. A month later, Thomas
and six of his co-conspirators were arrested.
2
Thomas pleaded guilty to possession with intent to distribute heroin. At the plea
hearing, the district court conducted a thorough colloquy to ensure that Thomas’s guilty
plea was knowing and voluntary and that there was a factual basis for the plea. 1 The
district court informed Thomas that he was under oath and then confirmed that Thomas
was not under the influence of drugs or alcohol. The court advised Thomas of his right to
counsel and confirmed that Thomas was satisfied with his counsel. The court then
ensured that Thomas understood the charges against him. Before accepting Thomas’s
guilty plea, the court advised him of the rights he was forfeiting by pleading guilty and
explained the following: that Thomas had the right to plead not guilty and proceed to a
trial by jury; that, at a trial, he would be assisted by an attorney; that he would have the
right to confront all witnesses and to cross-examine them, as well as the right to compel
the attendance of witnesses; that he had the right not to incriminate himself; and that the
government would bear the burden of proof at trial and would have to prove all the
elements of the charge beyond a reasonable doubt. Thomas then acknowledged that he
was giving up those rights.
The court also informed Thomas of the elements of the offense he was pleading
guilty to. The government reviewed the factual basis for the plea, and Thomas stated on
the record that he agreed with the recitation of the facts. The court then stated the
maximum penalty for the offense. The court also reviewed each paragraph of the plea
1
App. 38–52.
3
agreement, including the appellate waiver provision—Thomas acknowledged that he was
waiving his appellate rights.
At sentencing, the district court determined that Thomas’s base offense level was
22, which the court reduced by two points for acceptance of responsibility, and that
Thomas’s criminal history category was III. His Guidelines range was 41 to 51 months,
and the district court imposed a sentence of 48 months’ imprisonment to be followed by a
three-year term of supervised release. Thomas timely appealed.
II.2
Thomas’s court-appointed counsel determined that an appeal would be wholly
frivolous and has accordingly requested permission to withdraw. Under Anders, “counsel
may seek to withdraw from representing an indigent criminal defendant on appeal if there
are no nonfrivolous issues to appeal.”3 “We must determine: 1) whether counsel
adequately fulfilled the requirements of Third Circuit Local Appellate Rule 109.2(a), and
2) whether an independent review of the record presents any nonfrivolous issues.”4
A.
To meet the first prong, counsel must “satisfy the court that counsel has
thoroughly examined the record in search of appealable issues, and . . . explain why the
2
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
3
Simon v. Gov’t of the Virgin Islands, 679 F.3d 109, 114 (3d Cir. 2012).
4
Id.
4
issues are frivolous.”5 “Counsel need not raise and reject every possible claim,” but he
must “provide[] sufficient indicia that he thoroughly searched the record and the law in
service of his client so that we might confidently consider only those objections raised.” 6
Here, Thomas’s counsel has satisfied the first prong. After a thorough examination
of the record, defense counsel identified the following issues that Thomas could raise on
appeal following a guilty plea: whether the district court had jurisdiction to accept
Thomas’s guilty plea; whether the guilty plea colloquy fully complied with Rule 11 of the
Federal Rules of Criminal Procedure; whether Thomas attempted to withdraw his guilty
plea and, if he did, whether the district court properly denied such a request; and whether
Thomas’s sentence was substantively reasonable. Defense counsel reviewed the law
related to those issues in his brief and attached an appendix with the relevant portions of
the record, demonstrating that he thoroughly searched the record and the law in service of
his client. Furthermore, counsel set forth in his brief the basis for his conclusion that the
issues were frivolous. Because defense counsel fulfilled the requirements of Third Circuit
Local Appellate Rule 109.2(a), we accept his Anders brief as adequate.
5
United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001); see also 3d Cir. L.A.R.
109.2(a) (“Where, upon review of the district court record, counsel is persuaded that the
appeal presents no issue of even arguable merit, counsel may file a motion to withdraw
and supporting brief . . . .”).
6
Youla, 241 F.3d at 300–01 (internal quotation marks omitted).
5
B.
Prong two of the inquiry requires an “independent review” of the record to
determine whether Thomas’s appeal presents any non-frivolous issues for review.7
“Where the Anders brief initially appears adequate on its face, the proper course is for the
appellate court to be guided in reviewing the record by the Anders brief itself.”8 “An
appeal on a matter of law is frivolous where none of the legal points are arguable on their
merits.”9
Following the guidance of defense counsel’s Anders brief, we consider the issues
that could be raised on appeal under these circumstances. We agree with defense counsel
that the issues identified in his Anders brief lack any non-frivolous basis. First, the district
court clearly had jurisdiction under 18 U.S.C. § 3231 over the drug offenses for which
Thomas was charged.10 Second, after a review of the plea colloquy, we conclude that the
district court fully complied with the plea requirements outlined in Rule 11. There is no
doubt that Thomas’s decision to plead guilty was knowing and voluntary. 11 Third,
Thomas never attempted to withdraw his guilty plea. While it is true that Thomas stated
during his sentencing hearing that he only pleaded guilty because certain evidence was
7
Id. at 300.
8
Id. at 301 (internal quotation marks omitted).
9
Id. (alterations and internal quotation marks omitted).
10
“[I]t shall be unlawful for any person knowingly or intentionally . . . to
manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance.” 21 U.S.C. § 841(a)(1).
11
We note also that Thomas’s plea agreement contained an appellate waiver
provision.
6
not suppressed and that he did not feel he would get a fair trial as a result, there is nothing
in the record that shows that Thomas attempted to withdraw his knowing and voluntary
plea of guilty.12 Fourth, the sentence imposed was substantively reasonable. In assessing
substantive reasonableness we will “affirm [the district court] unless no reasonable
sentencing court would have imposed the same sentence on that particular defendant for
the reasons the district court provided.”13 The sentence falls within the Guidelines range,
and the District Court considered the relevant factors under 18 U.S.C. § 3553(a).
III.
We agree with defense counsel’s assessment of Thomas’s appeal. Our independent
review of the record has failed to reveal any non-frivolous issues for appeal. We will
accordingly grant defense counsel’s motion to withdraw and affirm Thomas’s conviction
and sentence.
12
See App. 59–63.
13
United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009).
7