10-72-cr
United States v. Elbert
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 August Term, 2010
6
7
8 (Submitted: April 8, 2011 Decided: September 19, 2011)
9
10 Docket No. 10-72-cr
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12 - - - - - - - - - - - - - - - - - - - -x
13
14 UNITED STATES,
15
16 Appellee,
17
18 - v.-
19
20 VINCENT ELBERT, a.k.a. BJOHNTO90,
21
22 Defendant-Appellant.
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24 - - - - - - - - - - - - - - - - - - - -x
25
26 Before: JACOBS, Chief Judge, CABRANES, Circuit
27 Judge, and KRAVITZ, District Judge.*
28
29 On defendant Vincent Elbert’s appeal from his
30 conviction and sentence imposed, after his guilty plea, by
31 the United States District Court for the Southern District
32 of New York (Rakoff, J.), counsel filed a motion with this
33 Court pursuant to Anders v. California, 386 U.S. 738 (1967)
34 and the government filed a motion for summary affirmance.
*
The Honorable Mark R. Kravitz, of the United States
District Court for the District of Connecticut, sitting by
designation.
1 The motions are granted. Although we have previously held
2 that, solely in the context of an Anders motion, failure to
3 provide a written statement of reasons that complies with 18
4 U.S.C. § 3553(c)(2) always necessitates a remand to the
5 district court, United States v. Hall, 499 F.3d 152 (2d Cir.
6 2007) (per curiam), we see no reason why the Anders context
7 requires this unique treatment. We therefore hold that,
8 although compliance with the strictures of section
9 3553(c)(2) is always required, remand is not always required
10 to remedy noncompliance. In so ruling, we abrogate our
11 prior holding in Hall only to the limited extent that it
12 uniformly required remand in these circumstances.
13 HOWARD M. SIMMS, New York, New
14 York, for Appellant.
15
16 DANIEL CHUNG, Assistant United
17 States Attorney, for Preet
18 Bharara, United States Attorney
19 for the Southern District of New
20 York, New York, New York, for
21 Appellee.
22
23 DENNIS JACOBS, Chief Judge:
24
25 On defendant Vincent Elbert’s appeal from his
26 conviction and sentence imposed, after his guilty plea, by
27 the United States District Court for the Southern District
28 of New York (Rakoff, J.), counsel filed a motion with this
29 Court pursuant to Anders v. California, 386 U.S. 738 (1967)
2
1 and the government filed a motion for summary affirmance.
2 Because there are no non-frivolous issues for appeal and
3 remand cannot benefit the defendant in this case, we grant
4 defense counsel’s motion to be relieved and the government’s
5 motion for summary affirmance. Our review of the record
6 shows that the district court imposed a below-Guidelines
7 sentence without providing a written statement that
8 explained with “specificity,” 18 U.S.C. § 3553(c)(2), the
9 reasons for the sentence imposed.
10 We have previously held that, in the context of an
11 Anders motion, failure to provide a statement of reasons
12 that complies with section 3553(c)(2) necessitates a remand
13 to the district court. See United States v. Hall, 499 F.3d
14 152, 157 (2d Cir. 2007) (per curiam). We have not, however,
15 applied as rigid a requirement in the non-Anders context.
16 See, e.g., United States v. Jones, 460 F.3d 191, 197 (2d
17 Cir. 2006); United States v. Fuller, 426 F.3d 556, 567 (2d
18 Cir. 2005). We now hold that--even in the context of an
19 Anders motion--although compliance with section 3553(c)(2)
20 is always required, remand is not always required to remedy
21 noncompliance. In so holding, we abrogate our prior holding
22 in Hall to the limited extent that it uniformly requires
23 remand in these circumstances.
3
1 BACKGROUND
2 Vincent Elbert pleaded guilty to (i) one count of
3 attempting, after a prior sex-offense conviction, to entice
4 individuals under the age of eighteen to engage in sexual
5 activity for which a person can be charged with a criminal
6 offense, in violation of 18 U.S.C. §§ 2422(b) and 2426; (ii)
7 one count of traveling in interstate commerce, after a prior
8 sex-offense conviction, for the purpose of engaging in
9 illicit sexual conduct, in violation of 18 U.S.C. §§ 2423(b)
10 and 2426; and (iii) one count of distributing child
11 pornography, after a prior conviction for aggravated sexual
12 abuse, sexual abuse, or abusive sexual conduct involving a
13 minor or ward, in violation of 18 U.S.C. §§ 2252A(a)(1) and
14 2252A(b)(1).2
15 Prior to accepting the defendant’s guilty plea, the
16 district judge conducted a hearing in full compliance with
17 Federal Rule of Criminal Procedure 11, including confirming:
18 that Elbert understood the nature of the charges against
19 him, that a sufficient factual predicate supported the
20 charges to which he was pleading guilty, that Elbert
2
Before accepting the defendant’s guilty plea the
district court confirmed that, in 1990, Elbert was
convicted, after a jury trial, in Missouri state court of
sodomy and sexual abuse in the first degree.
4
1 understood the rights he was giving up by pleading guilty,
2 and that he was satisfied with his counsel’s representation.
3 The district court also ensured that Elbert understood the
4 statutory minimum and maximum sentences associated with each
5 count of the indictment, including a mandatory minimum
6 sentence of twenty years and maximum sentence of life
7 imprisonment on count one.
8 The government asked the district court to sentence
9 Elbert to a within-Guidelines sentence of 360 months’ to
10 life imprisonment. The defendant sought a below-Guidelines
11 sentence, citing an expert psychological evaluation which
12 detailed trauma he experienced as a child and described the
13 impact of his military service in Vietnam. At the
14 conclusion of a thorough sentencing hearing, the district
15 judge concluded that Elbert “is a troubled personality” who
16 had made “terrible mistakes,” and that the mandatory minimum
17 sentence of twenty years’ imprisonment, to be followed by
18 five years of supervised release, was “sufficient, but not
19 greater than necessary,” in light of the “nature and
20 circumstances of the offense and the history and
21 characteristics of the defendant,” 18 U.S.C. § 3553(a), to
22 adequately address the factors set out in 18 U.S.C.
23 § 3553(a)(2). Elbert has filed a timely notice of appeal;
5
1 his counsel has filed a motion to be relieved pursuant to
2 Anders v. California, 386 U.S. 738 (1967); and the
3 government has moved for summary affirmance.
4 DISCUSSION
5 “Not infrequently, an attorney appointed to represent
6 an indigent defendant . . . concludes that an appeal would
7 be frivolous and requests that the appellate court allow him
8 to withdraw” without filing a brief on the merits. Smith v.
9 Robbins, 528 U.S. 259, 264 (2000). The Court is then
10 required to “safeguard against the risk of granting such
11 requests in cases where the appeal is not actually
12 frivolous.” Id. In Anders, the Supreme Court established a
13 “prophylactic,” id. at 265, procedure: If followed, that
14 procedure allows defense counsel to “assure the court that
15 the indigent defendant’s constitutional rights have not been
16 violated.” McCoy v. Court of Appeals of Wis., Dist. 1, 486
17 U.S. 429, 442 (1988). At the same time, Anders recognized
18 “that the right to appellate representation does not include
19 a right to present frivolous arguments to the court” and
20 that “an attorney is ‘under an ethical obligation to refuse
21 to prosecute a frivolous appeal.’” Smith, 528 U.S. at 272
22 (quoting McCoy, 486 U.S. at 436). A driving force behind
23 the Supreme Court’s opinion in Anders is to ensure that
6
1 appointed defense counsel fulfills “[h]is role as advocate.”
2 Anders, 386 U.S. at 744; see also id. at 743, 745.
3 A review of the record confirms the view of defense
4 counsel that Elbert’s guilty plea was “completely voluntary
5 and knowing,” United States v. Torres, 129 F.3d 710, 715 (2d
6 Cir. 1997), and there is no non-frivolous issue available
7 for appeal, see United States v. Ibrahim, 62 F.3d 72, 74 (2d
8 Cir. 1995) (per curiam) (explaining that when, as here, a
9 defendant does not challenge the validity of a guilty plea,
10 counsel should “discuss the validity of the plea and why
11 there are no non-frivolous issues regarding the plea on
12 which to base an appeal”). As the district court observed,
13 the properly calculated sentencing Guidelines prescribed a
14 sentence of thirty years’ to life imprisonment. The
15 district court instead imposed the mandatory statutory
16 minimum sentence of twenty years, to be followed by a term
17 of supervised release.
18 At the sentencing proceeding, the district judge
19 explicitly set forth his consideration of the factors set
20 out in 18 U.S.C. § 3553(a). See United States v. Fleming,
21 397 F.3d 95, 99 (2d Cir. 2005). Counsel can raise no
22 colorable argument that the sentence imposed is procedurally
23 or substantively unreasonable. See United States v. Samas,
7
1 561 F.3d 108, 111 (2d Cir. 2009) (“The wording of § 3553(a)
2 is not inconsistent with a sentencing floor.”). Given this
3 record, the risks associated with challenging either the
4 validity of the plea or the sentence are “fairly inferable
5 from counsel’s report of the sentence and the circumstances
6 under which it was imposed.” United States v. Bygrave, 97
7 F.3d 708, 709 (2d Cir. 1996).
8 Counsel for the defendant has, in all respects,
9 complied with his duty to “conscientiously determine[] that
10 there is no merit to [Elbert’s] appeal.” Anders, 386 U.S.
11 at 739. However, the district court’s written statement of
12 reasons for the sentence imposed, see 18 U.S.C.
13 § 3553(c)(2), provides only that the non-Guidelines sentence
14 was imposed for the reasons stated at the sentencing
15 proceeding orally. Our precedent requires that the district
16 court provide a written statement of reasons, that it
17 include at least “a simple summary of facts” and “that in
18 the context of an Anders review counsel may not waive the
19 written statement requirement of section 3553(c)(2) even
20 though the district court gave adequate oral explanations
21 for the sentence.” Hall, 499 F.3d at 155, 157.
22 “We readily acknowledge that a panel of our Court is
23 bound by the decisions of prior panels until such time as
8
1 they are overruled either by an en banc panel of our Court
2 or by the Supreme Court.” Shipping Corp. of India Ltd. v.
3 Jaldhi Overseas Pte Ltd., 585 F.3d 58, 67 (2d Cir. 2009)
4 (internal quotation marks omitted). In the ordinary case,
5 it is “neither appropriate nor possible” for a panel of this
6 Court “to reverse an existing Circuit precedent.” Id. In
7 this case, however, we have circulated this opinion to all
8 active members of the Court, United States v. Parkes, 497
9 F.3d 220, 230 n.7 (2d Cir. 2007), and we now relinquish the
10 position--previously adopted in Hall--that, in the context
11 of an Anders motion, remand is always required when the
12 written statement of reasons for the sentence imposed does
13 not strictly comply with § 3553(c)(2).
14 As Hall points out, the requirement that the district
15 judge provide a written statement of reasons for the
16 sentence imposed assists in the collection of data by the
17 Bureau of Prisons and the Sentencing Commission. Hall, 499
18 F.3d at 154. That is no doubt to the good. At the same
19 time, there are anomalies: the Hall remand requirement
20 operates only in the Anders context. Hall explicitly
21 recognizes that “parties may waive the section 3553(c)(2)
22 requirement in a non-Anders case.” Id. at 156. So, a
23 lawyer who advances appellate arguments (however thin) on
9
1 behalf of a client does not necessarily open to scrutiny the
2 issue of compliance with § 3553(c)(2). Moreover, Hall may
3 sometimes have the effect of requiring defense counsel to
4 urge this Court to remand when a remand would be of no
5 benefit for the client. This casts the defense lawyer in a
6 role other than that of advocate representing the interests
7 of the client. True, lawyers appointed under the Criminal
8 Justice Act, like all others, are officers of the court; but
9 the remand required by Hall is not one that benefits the
10 courts. Rather, we are setting the lawyer to work for the
11 Bureau of Prisons and the Sentencing Commission, and doing a
12 futile job of it in any event. We are convinced that the
13 bright line rule established in Hall may undermine, rather
14 than serve, the goals of vigorous representation described
15 in Anders. We therefore abrogate the holding of Hall to the
16 extent--but only to the extent--that it uniformly requires
17 remand when the district court fails to provide a written
18 statement of reasons or when that statement fails to
19 “state[] with specificity” the reasons for the sentence
20 imposed. 18 U.S.C. § 3553(c)(2).
21 As Hall warns, it may be speculative “to say that the
22 absence of the written statement would have no effect.” 499
23 F.3d at 155. But, the fact that there may be cases where
10
1 the absence of a written statement could have an effect does
2 not justify the bright line rule; there are other cases in
3 which it is quite clear that the absence of a written
4 statement could not raise a non-frivolous appellate issue.
5 It is hardly speculative to conclude that a remand in this
6 case to require the district court to set down the reasons
7 for a properly imposed, below-Guidelines sentence can confer
8 no benefit on this criminal defendant, who has been
9 sentenced to the statutory minimum.
10 It would be speculative, however, to say that there is
11 no circumstance in which remand for a written statement of
12 reasons will elicit from the district judge observations
13 that are detrimental to a defendant. Quite apart from any
14 facts presented by this case, a sentence might be influenced
15 by cooperation with the authorities, or other things the
16 defendant would not want memorialized in a written judgment.
17 See id. (observing that “circulation through the Bureau of
18 Prisons of a detailed statement of the facts underlying some
19 reasons can present particular concerns, as for example when
20 a statement references sensitive information about crime
21 victims, the defendant, or members of his family”); United
22 States v. Verkhoglyad, 516 F.3d 122, 134 n.9 (2d Cir. 2008).
23 Requiring a defendant’s lawyer to elicit such information
24 goes against the grain of advocacy.
11
1 All these things considered, it does seem a waste of
2 public funds that Congress appropriated for the defense of
3 those accused and convicted to require a lawyer to perform a
4 role and task that cannot benefit the client. A lawyer
5 should not be compelled to perform if there is no appellate
6 argument to make. At the same time, it is important to
7 acknowledge that if, in a given case, the absence of a
8 written statement of reasons (or the content of that
9 statement) provides an “arguable” basis for appeal, the
10 Anders motion should be denied. Anders, 386 U.S. at 744.
11 The principle in non-Anders cases is that it is the
12 better course--though not required--to remand when the
13 district court does not strictly comply with 18 U.S.C.
14 § 3553(c)(2). E.g., Jones, 460 F.3d at 197; Fuller, 426
15 F.3d at 567; see also, e.g., United States v. Daychild, 357
16 F.3d 1082, 1107 (9th Cir. 2004). So, a lawyer with any
17 appellate argument to make may “waive[] any claim for relief
18 on the basis of deficiencies in the district court’s written
19 explanation” of the sentence. United States v. Pereira, 465
20 F.3d 515, 524 (2d Cir. 2006).
21 Nothing about the context of an Anders motion should
22 forbid waiver, except that in the Anders context, our
23 independent review of the record brings non-compliance to
24 our attention. But, a lawyer, acting as an advocate for a
12
1 client and as an officer of the court, should make an
2 independent judgment as to whether deficiencies in a written
3 statement of reasons presents a non-frivolous appellate
4 issue. And, this Court, in reviewing the Anders motion,
5 will determine whether counsel’s assessment of an issue “is,
6 in fact, legally correct.” United States v. Whitley, 503
7 F.3d 74, 76 (2d Cir. 2007) (per curiam) (internal quotation
8 marks omitted). This process will adequately safeguard a
9 defendant’s “Sixth Amendment right to representation by
10 competent counsel.” McCoy, 486 U.S. at 436 (observing that
11 the Sixth Amendment right to competent representation is
12 retained on appeal). At the same time, it will ensure that
13 counsel’s role is not misdirected by the advancement of
14 frivolous arguments or by advocacy of measures that do not
15 serve the client, and that “the energies of the court or the
16 opposing party,” id., are not spent on cases in which an
17 Anders motion should properly be granted.
18 CONCLUSION
19 For the foregoing reasons, we grant defense counsel’s
20 motion to be relieved as counsel pursuant to Anders v.
21 California, 386 U.S. 738 (1967). We also grant the
22 government’s motion for summary affirmance of this appeal.
13