United States v. Michael Penwell

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-3122
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UNITED STATES OF AMERICA

v.

MICHAEL PENWELL,
Appellant
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Appeal from the United States District Court
For the Western District of Pennsylvania
(D.C. Criminal No. 08-cr-00387-001)
District Judge: Honorable Doneta W. Ambrose
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Submitted Under Third Circuit LAR 34.1(a)
October 5, 2011

Before: McKEE, Chief Judge, FUENTES and GREENBERG, Circuit Judges

(Opinion Filed: December 27, 2011)
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OPINION
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McKee, Chief Judge

Defendant Michael Penwell appealed from the district court’s 360 month

judgment of sentence. For the reasons that follow, we will affirm.
 I.

As we write only for the parties who are familiar with the facts and procedural

history of this case, we will set forth only those facts relevant to our conclusion.

Penwell’s appointed counsel filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), stating that after a conscientious examination of the record, Penwell’s

appeal is wholly frivolous. Id. at 744. When reviewing an Anders brief, this court’s

inquiry is two fold: (1) whether counsel has thoroughly and conscientiously examined the

record for appealable issues and explained why those issues are frivolous; (2) whether an

independent review of the record would uncover any non-frivolous issues for appeal.

United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). The brief must identify any

“issue arguably supporting the appeal even though the appeal was wholly frivolous,”

Smith v. Robbins, 528 U.S. 259, 285 (2000), “explain why the issues are frivolous,”

United States v. Marvin, 211 F.3d 778, 781 (3d Cir. 2000), and show that counsel

“thoroughly scoured the record in search of appealable issues.” Id. at 780, see also Youla,

241 F.3d at 300. “Counsel need not raise and reject every possible claim[,]” but he or she

must still conscientiously examine the record. Youla, 241 F.3d at 300.

II.

Counsel has identified two potential non-frivolous issues and explained why each

is frivolous: (1) whether the Rule 11 colloquy was thorough and in full compliance with

Fed. R. Civ. P. 11; and (2) whether the district court imposed a reasonable sentence.

Counsel adequately explains the frivolousness of an appeal regarding the Rule 11

colloquy. The guilty plea clearly met the standards for a knowing and voluntary plea

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established in Boykin v. Alabama, 395 U.S. 238 (1969), and the requirements provided in

Rule 11 of the Federal Rules of Criminal Procedure. See United States v. Schweitzer, 454

F.3d 197, 202-03 (3d Cir. 2006). During the sentencing hearing, Penwell was addressed

personally by the district court prior to the court accepting his plea. The court informed

him of his constitutional right to a jury trial, his right to be represented by counsel, his

right to confront and cross-examine witnesses and that these rights would be waived if he

pled guilty. Additionally, the court explained the maximum possible penalty he could

receive and reviewed the sentencing process. The court then administered a thorough

plea colloquy, asking Penwell questions regarding his competency and understanding of

the proceeding. When asked if he understood, Penwell responded in the affirmative. The

plea colloquy easily satisfied the constitutional and statutory requirements. Penwell

knowingly and voluntarily pled guilty to all three charges.

The sentence imposed was procedurally and substantively reasonable. The court

reviews de novo procedural errors in interpreting the Sentencing Guidelines, Gall v.

United States, 552 U.S. 38, 39 (2007), and considers a sentence’s substantive

reasonableness under an abuse of discretion standard. United States v. Tomko, 562 F.3d

558, 567 (3d Cir. 2009). The substantive reasonableness of a sentence depends upon

“whether the record as a whole reflects rational and meaningful consideration of the

factors enumerated in 18 U.S.C. § 3553(a).” United States v. Grier, 475 F.3d 556, 571

(3d Cir. 2007).

Here, the court did not procedurally err when interpreting the Sentencing

Guidelines. The 360 month sentence was the exact sentence advised by U.S.S.G. §

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5G1.1(a) and therefore within the Guidelines. The court rationally and carefully

considered the § 3553(a) factors and articulated its reasons for imposing the sentence.

Accordingly, any appeal challenging the reasonableness of the sentence is wholly

frivolous.

III.

Defendant, in his pro se brief, argues: (1) the district court incorrectly applied a

five-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(3)(B), because Penwell did not

distribute child pornography for anything of value or the expectation of anything of

value; and (2) the court did not have jurisdiction. We conclude that both arguments are

frivolous.

The argument relating to the enhancement is a question of fact and is reviewed for

clear error. United States v. Wise, 515 F.3d 207, 217 (3d Cir. 2008). Section

2G2.2(b)(3)(B) applies only to individuals who distribute child pornography because they

expect to receive child pornography in return or have received it in return. United States

v. Battaglia, 624 F.3d 348, 351-52 (6th Cir. 2010). Here, the sentencing hearing

transcript reflects that Penwell used a picture sharing program to collect and trade child

pornography, and thereby satisfied that requirement. In a conversation with another

trader he promised to send pictures of his daughter naked in exchange for “something

hot.” The court’s finding that Penwell distributed child pornography for something of

value, other images of child pornography, was sufficient to trigger the five-level

sentencing enhancement.

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 Penwell’s second argument is also frivolous. Penwell contends that § 3231 is

unconstitutional because Public Law 80-772, was enacted in violation of Article I of the

United States Constitution. He claims both houses of Congress did not vote on it in the

same legislative session. We disagree. The validity of § 3231 has been affirmed by every

court to address it. Cardenas-Celestino v. United States, 552 F. Supp. 2d. 962, 966

(W.D. Mo. 2008); Mullican v. Stine, Civ. A. No. 07-129-KKC, 2007 U.S. Dist. LEXIS

29884, 2007 WL 1193534 (ED. Ky. Apr. 23, 2007); Campbell v. Gonzalez, Civ. A. No.

07-36-GFVT, 2007 U.S. Dist. LEXIS 23307, 2007 WL 1035021 (E.D. Ky. Mar. 29,

2007); Cullum v. Fox, Civ. A. No. 1:06cv309, 2006 U.S. Dist. LEXIS 89551, 2006 WL

3691170 (E.D. Tex. Dec. 11, 2006); Bledsoe v. Levi, Civ. A. No. 074543, 2007 U.S. Dist.

LEXIS 84403, 2007 WL 3408449 (E.D. Pa. Nov. 15,2007). There is no merit to the

claim Public Law 80-772 and § 3231 were not properly enacted by both houses of

Congress. See, e.g., United States v. Risquet, 426 F. Supp. 2d 310, 311 (E.D. Pa. 2006).

The House voted on the bill, there was an inter-session adjournment, and then the Senate

voted on it. United States v. Martinez, CR No. C-04-157, C.A. No. C-05-423, 2006 U.S.

Dist. LEXIS 31652, at *13-16 (S.D. Tex. May 6, 2006). Bills passed by one house

before an inter-session recess and by the other house after the recess are properly passed

by Congress. Derleth v. United States, CR. No. L-03-1745-6, 2006 U.S. Dist. LEXIS

45540, at *11-12 (S.D. Tex. June 27, 2006). Accordingly, because the district court had

jurisdiction under § 3231 to try, convict and sentence Penwell, his appeal is wholly

frivolous.

IV.
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 For the foregoing reasons, we will grant the motion to withdraw and will affirm

the district court’s judgment.

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