NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-2114
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UNITED STATES OF AMERICA
v.
SHYNNELL ISAAC WALKER, a/k/a “SHAW” a/k/a “Shawnell”
Appellant
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Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 4-05-cr-00211-005)
District Judge: Hon. Christopher C. Conner
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Submitted Under Third Circuit L.A.R. 34.1(a)
March 15, 2021
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Before: SHWARTZ, PORTER, and MATEY, Circuit Judges.
(Filed: March 17, 2021)
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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.
SHWARTZ, Circuit Judge.
Shynnell Walker appeals the District Court’s judgment revoking his supervised
release. His appellate counsel contends that his appeal presents no nonfrivolous issues
and moves to withdraw under Anders v. California, 386 U.S. 738 (1967). We will grant
the motion and affirm.
I
Walker pleaded guilty to one count of conspiracy to possess heroin with the intent
to distribute, in violation of 21 U.S.C. § 846, and was sentenced to seventy months’
imprisonment followed by three years’ supervised release. Walker was released from
prison on May 16, 2012 and began his term of supervised release.
Approximately three months later, Walker was charged with possession of heroin
with intent to deliver and possession of marijuana for personal use. Because his
commission of these state crimes violated his terms of supervised release, the District
Court revoked Walker’s supervised release and sentenced him to twenty-four months’
imprisonment, to be served consecutively to any state-imposed sentence, followed by
three years’ supervised release. Walker served his prison sentences and began his second
term of supervised release on July 27, 2017.
In August 2018, Walker was charged with illegal possession of a firearm,
possession of heroin and marijuana with the intent to deliver, and possession of heroin
2
and marijuana. 1 Walker was held in state custody, and the Government obtained a
warrant for Walker’s arrest based on his alleged violation of the condition of supervised
release that forbade him from committing a state crime. See 18 U.S.C. § 3583(d). The
warrant was lodged as a detainer.
Approximately twelve months later, Walker appeared before the Magistrate Judge,
who held preliminary and bail hearings. The Magistrate Judge concluded that there was
probable cause to believe Walker violated his conditions of supervised release and
detained him pending further proceedings. Walker then appeared before the District
Court for a revocation hearing. There, he waived his right to a revocation hearing and
admitted that he violated the conditions of his supervised release by committing a state
crime. The Court revoked Walker’s supervised release and sentenced him to twenty-four
months’ imprisonment, consecutive to any state-imposed term of imprisonment, with no
further supervised release.
Walker’s counsel filed an appeal on Walker’s behalf and a motion to withdraw,
asserting that there are no nonfrivolous grounds for appeal.
II 2
A
“Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines the Supreme
1
Walker pleaded guilty in state court to one count of possession of marijuana with
the intent to deliver and was sentenced to fifteen to thirty months’ imprisonment.
2
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We
exercise plenary review to determine whether there are any nonfrivolous issues for
3
Court promulgated in Anders to assure that indigent clients receive adequate and fair
representation.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). This rule
allows defense counsel to file a motion to withdraw and an accompanying brief pursuant
to Anders when counsel has reviewed the record and concluded that “the appeal presents
no issue of even arguable merit.” Third Cir. L.A.R. 109.2(a). When counsel submits an
Anders brief, we must determine: “(1) whether counsel adequately fulfilled the rule’s
requirements; and (2) whether an independent review of the record presents any
nonfrivolous issues.” Youla, 241 F.3d at 300 (citing United States v. Marvin, 211 F.3d
778, 780 (3d Cir. 2000)). An issue is frivolous if it “lacks any basis in law or fact.”
McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 438 n.10 (1988).
To determine whether counsel has fulfilled Rule 109.2(a)’s requirements, we
examine the brief to see if it: (1) shows that counsel has thoroughly examined the record
in search of appealable issues, identifying those that arguably support the appeal even if
wholly frivolous, Smith v. Robbins, 528 U.S. 259, 285 (2000); and (2) explains why
those issues are frivolous, Marvin, 211 F.3d at 780-81. If counsel’s Anders brief meets
these requirements, it guides our review, and we need not scour the record. See Youla,
241 F.3d at 301.
Counsel’s Anders brief satisfies both elements, and an independent review of the
appeal. Penson v. Ohio, 488 U.S. 75, 80 (1988). Because Walker did not object to any
aspect of his conviction or sentence, we review for plain error. United States v. Flores-
Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc).
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record reveals no nonfrivolous issues. 3 First, the brief demonstrates a thorough
examination of the record and identifies the District Court’s jurisdiction, the validity of
the supervised release revocation, and the reasonableness of the sentence. Second, the
brief explains why any challenge to the revocation or sentence would be frivolous under
the governing law. Counsel’s Anders brief is therefore sufficient, so we will confirm the
District Court’s jurisdiction and review the propriety of the revocation and sentence.
B
As Walker’s counsel notes, there is no question that the District Court had
jurisdiction to revoke his supervised release and impose a prison sentence under 18
U.S.C. § 3583(e)(3), because it had jurisdiction under 18 U.S.C. § 3231 to adjudicate
Walker’s underlying conviction for possession with intent to distribute heroin in violation
of 21 U.S.C. § 846. Accordingly, any objection to the District Court’s jurisdiction would
be frivolous.
There were also no errors in the revocation proceedings. Before a district court
may revoke supervised release, the person alleged to have violated the terms of his
release is entitled to a preliminary hearing, followed by a revocation hearing, at which the
person has the right to notice and counsel, to question adverse witnesses, and to present
evidence on the alleged violation and in mitigation. Fed. R. Crim. P. 32.1(b). A
defendant may waive the right to this hearing. Fed. R. Crim. P. 32.1(c)(2)(A).
3
Walker was permitted to file a pro se brief raising any additional arguments, but
he did not do so.
5
Here, Walker had a preliminary hearing and the Magistrate Judge found there was
probable cause to believe that Walker violated the terms of supervised release. 4 Before
the District Court, Walker waived his right to a hearing and admitted to the violation.
We review whether Walker’s admission to having violated his terms of supervised
release was counseled and voluntary. See United States v. Broce, 488 U.S. 563, 569
(1989) (holding that the review of a final judgment of conviction based on a guilty plea is
generally limited to whether the plea was both voluntary and counseled). In the context
of a supervised release revocation hearing, the voluntariness of a defendant’s waiver of
rights is based on the “totality of the circumstances.” United States v. Manuel, 732 F.3d
283, 291 (3d Cir. 2013). This standard does not mandate “rigid or specific colloquies
with the district court,” but requires that the court advise the “person on supervised
release of both the rights afforded him[] and the consequences of relinquishing those
rights.” Id. (quotation marks and citations omitted); see also United States v. LeBlanc,
175 F.3d 511, 515-16 (7th Cir. 1999) (reviewing cases and noting that “we are unaware
of any court holding that a Rule 11 colloquy would be required at a probation or parole
revocation”).
4
The twelve-month delay between the filing of the revocation petition and the
preliminary hearing before the Magistrate Judge did not violate Walker’s due process or
Rule 32 rights because he was in state custody for the entire period, see United States ex
rel. Caruso v. U.S. Bd. of Parole, 570 F.2d 1150, 1153-55 (3d Cir. 1978), and the
reasonable time within which he must have had a hearing was not triggered until he was
brought into federal custody.
6
Walker’s admission that he violated his supervised release and his agreement to
waive his right to a revocation hearing were knowing and voluntary. 5 The District Court
first confirmed that Walker’s counsel reviewed the petition for revocation with him and
that Walker understood the charge against him and the underlying facts. The District
Court then explained to Walker that he was entitled to a revocation hearing, in which the
Government would offer evidence to prove those charges. It noted that if Walker waived
the revocation hearing, that waiver “would be viewed as an admission that [Walker]
committed the violations set forth in the [revocation] petition” and the Court would
proceed to sentencing. App. 100. Additionally, Walker’s counsel stated that Walker was
willing to admit to the violation and understood the consequences of that admission.
Following the colloquy, the Court found that Walker was “fully alert, competent, and
capable of making a voluntary waiver,” accepted that waiver, and concluded that Walker
violated his terms of supervised release. The totality of the circumstances demonstrates
there is no nonfrivolous argument regarding Walker’s knowing and voluntary revocation
hearing waiver or his admission that he violated his supervised release.
Finally, Walker’s counsel is correct that there are no nonfrivolous arguments
concerning the reasonableness of Walker’s sentence. Reasonableness encompasses both
procedural and substantive components. See United States v. Tomko, 562 F.3d 558, 566
(3d Cir. 2009) (en banc). With respect to procedural reasonableness, a district court must
5
Because this revocation hearing was not Walker’s first, he was familiar with
these proceedings.
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(1) calculate the applicable Guidelines range, (2) consider departure motions, and
(3) meaningfully address all relevant 18 U.S.C. § 3553(a) factors. United States v.
Gunter, 462 F.3d 237, 247 (3d Cir. 2006). In the context of a supervised release
violation, the sentence is imposed “primarily to sanction the defendant’s breach of trust
while taking into account, to a limited degree, the seriousness of the underlying violation
and the criminal history of the violator.” United States v. Bungar, 478 F.3d 540, 544 (3d
Cir. 2007) (quotation marks and citations omitted). The District Court fulfilled these
requirements.
First, the District Court correctly found that, pursuant to U.S.S.G. § 7B1.1(a)(1),
Walker committed a Grade A violation of his supervised release and that he had a
criminal history category of IV. As such, the Court correctly determined that he faced a
Guidelines sentence of twenty-four to thirty months, but that the statutory maximum
capped his sentence at twenty-four months under 18 U.S.C. § 3583(e).
Second, the District Court considered and denied Walker’s request that his
supervised release sentence run concurrent to his state sentence. The Sentencing
Commission “strong[ly] prefer[s] . . . imposing a consecutive sentence to the extent
necessary to provide an incremental penalty.” United States v. Swan, 275 F.3d 272, 283
(3d Cir. 2002). A consecutive sentence is not mandatory, however, and a district court
may “exercise its discretion and be guided by its own view of what is needed in the way
of an incremental penalty in the particular setting.” Id. Here, the Court reasonably
concluded that, given Walker’s criminal history and previous violation of supervised
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release for having committed another state drug crime, a consecutive sentence was
warranted.
Third, the District Court imposed a sentence “for reasons that are logical and
consistent with the factors set forth” in § 3553(a). United States v. Styer, 573 F.3d 151,
154-55 (3d Cir. 2009) (quoting United States v. Cooper, 437 F.3d 324, 330 (3d Cir.
2006)). The Court weighed Walker’s “significant criminal history” and pattern of
“violations . . . [that] seem to occur relatively quickly after release” against Walker’s
personal circumstances meriting mitigation, including his allocution, which detailed
violence prevention and drug treatment programs he completed while incarcerated, and
the testimony of family members. App. 104. The Court then concluded that, because
Walker was “incorrigible and incapable of meaningful supervision,” as reflected by his
commission of multiple crimes while on supervised release, it would impose the statutory
maximum sentence of twenty-four months’ imprisonment but would not order a further
term of supervised release. App. 104. The sentence was thus procedurally reasonable.
The sentence was also substantively reasonable. Given Walker’s history of
recidivism, we cannot say that “no reasonable sentencing court would have imposed” the
within-Guidelines sentence of twenty-four months. Tomko, 562 F.3d at 568. Thus, any
challenge to the substantive reasonableness of Walker’s sentence would lack merit.
III
For the foregoing reasons, we will affirm the District Court’s judgment and grant
counsel’s motion to withdraw.
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