PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 21-2114
__________
UNITED STATES OF AMERICA
v.
RASHEEM LANGLEY, a/k/a Q,
Appellant
__________
Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2:20-cr-01025-001)
District Judge: Honorable John M. Vazquez
__________
Submitted Under Third Circuit L.A.R. 34.1(a)
on September 12, 2022
Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges
(Filed: November 7, 2022)
__________
OPINION OF THE COURT
__________
Olubukola O. Adetula, Esq.
20 Rosewood Lane
Denville, NJ 07834
Attorney for Appellant
Rasheem Langley
Ray Brook FCI
P.O. Box 900
Ray Brook, NY 12977
Pro se
Mark E. Coyne, Esq.
Jane M. Dattilo, Esq.
Steven G. Sanders, Esq.
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Attorneys for Appellee
KRAUSE, Circuit Judge.
When counsel for a criminal defendant seeks to
withdraw from representing her client, she must comply with
the Supreme Court’s edict in Anders v. California, 386 U.S.
738 (1967) and file what is known as an Anders brief. But
counsel filing an Anders brief confronts a paradox. On the one
2
hand, to discharge her obligations under Anders, precedent and
our Local Rules require counsel to identify all issues that might
“arguably support” the defendant’s appeal—only to explain
why those issues are frivolous. Id. On the other hand, we have
advised that counsel need not raise every frivolous issue. That
paradox is even more confounding where a defendant
subsequently files a pro se brief raising frivolous issues that
counsel did not address. What, if anything, should counsel do
in that circumstance? Does her failure either to anticipate the
defendant’s arguments or to file a supplemental Anders brief
addressing them mean that counsel’s brief is per se inadequate?
We have not been consistent in answering these questions, so
we write today to clarify counsel’s obligations.
The vehicle that brings those issues before us is the
appeal filed by Richard Langley. Langley’s court-appointed
counsel sought to withdraw from representing Langley, filing
an Anders motion and accompanying brief that, on its face, met
the standard for a “conscientious investigation . . . [of] possible
grounds [for] appeal.” Id. at 741-42. After being served a copy
of that brief, however, Langley filed his own pro se brief
raising three arguments that were not addressed by counsel but
were patently frivolous. Because we hold that counsel is not
required to anticipate or address the defendant’s arguments in
that circumstance, and we agree with Langley’s counsel that
3
there are no non-frivolous issues for Langley to raise on appeal,
we will grant counsel’s Anders motion and dismiss the appeal.
I. BACKGROUND 1
In or around 2009, a group of individuals operating
under the names “CKarter Boys” or the “Jonez Boys” began a
drug trafficking operation (“DTO”) in Newark, New Jersey.
Defendant Richard Langley was a minor player in this DTO
and served as a street-level dealer between 2017 and 2019.
And after an investigation consisting of audio and visual
surveillance and controlled purchases, Langley was arrested
along with 25 other individuals in connection with the DTO on
June 18, 2019.
The Government offered Langley a plea agreement in
January 2020. The terms of that agreement provided that
Langley would plead guilty to a single count of conspiring with
others to distribute and possess with the intent to distribute 28
grams or more of crack-cocaine in violation of 21 U.S.C. §
846—an offense carrying a mandatory minimum sentence of
5-years’ imprisonment. It also provided that he would not
argue for a sentence below five years’ imprisonment, and that
he would enter into a limited appellate waiver applicable to any
challenges to the “sentence imposed by the sentencing court if
that sentence is 5 years or below.” App at 74. In exchange for
his plea, the Government agreed to not file additional charges
1
The factual and procedural background of this appeal are
taken from the Government’s criminal complaint, Langley’s
presentence report, Langley’s plea agreement, Langley’s
information, and the transcripts of Langley’s plea hearing and
sentencing hearing before the District Court.
4
against Langley for his involvement in the DTO and waived its
own right to appeal if the sentence imposed was “5 years or
above.” Id.
Although Langley and the Government acknowledged
the sentencing decision was entirely within the discretion of
the District Court and “recognize[d] that the stipulations,”
including the stipulated 5-year sentence, were “not binding
upon the Court,” both parties “nevertheless agree[d] to the
stipulations” and that a term of five-years’ imprisonment, i.e.,
60-months’, would be “reasonable.” App. at 74.
Langley accepted this plea deal and pleaded guilty in
November 2020. During his plea hearing, the District Court
engaged in a thorough colloquy under Fed. R. Crim. P. 11. The
Court confirmed that Langley wished to proceed by video
conference, that he was not intoxicated, and that he was
knowingly and voluntarily pleading guilty. See Fed. R. Crim.
P. 11(b)(2). It also confirmed that Langley understood he had
the right to plead not guilty and have a trial by jury, and that if
he chose to go to trial, he would have the right to an attorney,
the right to be present at trial, the right to subpoena witnesses,
the right not to testify, and that by pleading guilty he would
waive these rights. Id. 11(b)(1)(B)-(F).
Before Langley allocuted to an adequate factual basis
for his plea, the Court advised him of the penalties he faced for
his offense, and explained that, though non-binding, the Court
would have to calculate a sentence range using the United
States Sentencing Guidelines. Id. 11(b)(1)(G)-(O), 11(b)(3).
And importantly, for our purposes, the Court ensured that
Langley had discussed his plea agreement with his counsel and
that he understood its terms—including the terms and effect of
5
the appellate waiver. Id. 11(b)(1)(N). After affirming that he
understood each point addressed by the District Court, Langley
entered his plea.
A few months later, in May 2021, the District Court held
Langley’s sentencing hearing. There, the District Court heard
arguments from both the Government and defense counsel that
a 60-month sentence was appropriate given Langley’s minor
role in the DTO and the age of his prior convictions. Although
not required, it also addressed pro se arguments raised by
Langley, who had submitted a letter to the Court requesting a
sentence reduction based on the COVID-19 pandemic, the
effect of the crack/powder cocaine disparity on the Court’s
Guidelines calculation, and the age of the criminal convictions
used to calculate his Criminal History Category. The Court
advised Langley that his prior convictions had to be counted
because the last day of incarceration for each of these offenses
fell within the 15-year window for counting of offenses under
the Sentencing Guidelines. It also explained to him that it had
considered his arguments, but because it intended to grant a
substantial downward variance and impose the mandatory
minimum, in any event, those arguments could not reduce his
sentence any further.
Based on a Criminal History Category of VI and an
offense level of 25, the Court determined that the applicable
guideline range was 110 to 137 months. Nonetheless, after
considering arguments of counsel and the factors specified in
18 U.S.C. § 3553(a), the Court granted the downward variance
agreed upon by Langley and the Government and sentenced
Langley to 60-months’ imprisonment, followed by 5 years of
supervised release, and a $100.00 special assessment.
6
Langley filed a timely notice of appeal and requested
appointment of appellate counsel, which we granted,
appointing Langley’s trial counsel to serve on appeal. In due
course, the Clerk of Court issued a briefing schedule. When
the time came, however, in lieu of filing an appellate brief,
Langley’s counsel moved to withdraw, asserting in his Anders
brief, as required under Local Appellate Rule (L.A.R.)
109.2(a), that he identified “no issue of even arguable merit.”
Upon receipt of that motion, the Clerk issued a notice to
Langley. L.A.R. 109.2(a). Shortly thereafter, Langley
submitted his own pro se brief, objecting to withdrawal of
counsel and arguing for a further sentencing reduction on the
same grounds he had urged in the District Court.
I. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over Langley’s appeal under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a). Having received an
Anders motion, this Court must evaluate the adequacy of
counsel’s briefing and “must then itself conduct a full
examination of all the proceedings to decide whether the case
is wholly frivolous.” Penson v. Ohio, 488 U.S. 75, 80 (1988)
(internal citation omitted). If there are no non-frivolous issues
for appeal, we will grant counsel’s motion to withdraw and will
dismiss the appeal. 2 In conducting this analysis, we “exercise
2
Local Appellate Rule 109.2(a) states that if this Court “agrees
that the appeal is without merit, it will grant counsel’s Anders
motion, and dispose of the appeal without appointing new
counsel,” L.A.R. 109.2(a), but our cases have varied between
“dispos[ing] of the appeal” by way of dismissal, on the one
hand, and affirmance, on the other. Compare United States v.
Coleman, 575 F.3d 316, 322 (3d Cir. 2009) (disposing of
wholly frivolous appeal by affirming the district court), with
7
plenary review to determine whether there are any such [non-
frivolous] issues” and review factual findings for clear error.
Simon v. Gov’t of Virgin Islands, 679 F.3d 109, 114 (3d Cir.
2012).
II. DISCUSSION
When counsel files an Anders brief seeking to withdraw
from representation, we ask two principal questions: (1)
whether counsel’s brief in support of her motion fulfills the
United States v. Moore, 801 F. App’x 837, 841 (3d Cir. 2020)
(disposing of wholly frivolous appeal by dismissing appeal).
Other Circuits have also varied in their approach. See, e.g.,
United States v. Seignious, 757 F.3d 155, 166 (4th Cir. 2014)
(affirming); United States v. Pesina-Rodriguez, 825 F.3d 787,
788 (5th Cir. 2016) (dismissing appeal); United States v. Zitt,
714 F.3d 511, 515 (7th Cir. 2013) (affirming conviction and
dismissing appeal); United States v. Edwards, 400 F.3d 591,
592 (8th Cir. 2005) (affirming); United States v. Bennett, 219
F.3d 1117, 1126 (9th Cir. 2000) (affirming).
Anders itself provides that if a court finds a defendant’s
appeal is wholly frivolous, “it may grant counsel’s request to
withdraw and dismiss the appeal insofar as federal
requirements are concerned, or proceed to a decision on the
merits, if state law so requires.” Anders, 386 U.S. at 744; see
also Smith v. Robbins, 528 U.S. 259, 278 (2000) (“[A]n
indigent defendant who has his appeal dismissed because it is
frivolous has not been deprived of a ‘fair opportunity’ to bring
his appeal.”) (internal citation omitted); cf. 28 U.S.C. §
1915(e)(2)(B)(i) (instructing courts to dismiss “frivolous or
malicious” appeals). We will therefore dismiss this appeal,
rather than affirm.
8
requirements of L.A.R. 109.2(a); and (2) whether an
independent review of the record presents any non-frivolous
issues. See United States v. Youla, 241 F.3d 296, 300 (3d Cir.
2001). Counsel fails to fulfill her obligation under the first
prong of the Anders inquiry where she either does not
adequately attempt “to uncover the best arguments for . . . her
client,” or she “argue[s] the purportedly frivolous issues [she
identifies] aggressively without explaining the faults in the
arguments.” Id. (quoting United States v. Marvin, 211 F.3d
778, 781 (3d Cir. 2000)). Conversely, counsel satisfies her
Anders obligation if she: (1) demonstrates to this Court that she
has thoroughly examined the record in search of appealable
issues, and (2) explains why those issues are frivolous. Id.
Once we determine whether counsel has met her Anders
obligation, we proceed to step two of the Anders inquiry.
Although at step two we conduct our own review of the
record regardless, it matters whether we found counsel’s
review adequate at the first step. It matters to the scope of step
two because if counsel has fulfilled her obligation under
Anders, then we may limit our review of the record to the issues
counsel raised. Id. at 301. It matters for clients because an
inadequate brief impairs their ability to respond by “failing to
provide them with complete information about the basis for
counsel’s motion to withdraw.” United States v. Whitely, 503
F.3d 74, 77 (2d. Cir. 2007). And it matters for counsel for the
claims against counsel that may flow from an adverse finding
in collateral proceedings and for the reputation of counsel
generally. Yet what is required to meet the standard of an
adequate review by counsel has not always been described in
our case law with clarity or consistency.
We endeavor to shed light on that standard today.
Below, we address, first, the obligation of counsel under
9
Anders and our Local Rules; second, whether Langley’s
counsel has met that obligation here; and finally, whether our
independent review of the record discloses any non-frivolous
issues for appeal.
A. The Obligation of Counsel Under Anders and
L.A.R. 109.2(a)
In Anders, the Supreme Court clarified what counsel
must do in order to withdraw from representing a criminal
defendant while still satisfying “[t]he constitutional
requirement of substantial equality and fair process.” Anders,
386 U.S. at 744. There, the defendant was convicted of a
felony drug offense and sought to appeal with the assistance of
his appointed counsel. Id. at 739. After studying the record,
court-appointed counsel concluded there was no merit to his
client’s appeal and so sent a letter to the California District
Court of Appeal seeking to withdraw and explaining:
I will not file a brief on appeal as I am of the
opinion that there is no merit to the appeal. I
have visited and communicated with Mr. Anders
and have explained my views and opinions to
him. He wishes to file a brief in this matter on his
own behalf.
Id. at 740, 742.
Extrapolating on its holding in Ellis v. United States,
356 U.S. 674 (1958), the Supreme Court in Anders held that
for counsel to withdraw from representation while still
comporting with the constitutional requirement that an indigent
defendant be provided representation, counsel must satisfy the
court that she has conducted a “conscientious investigation”
10
and “has diligently investigated the possible grounds of
appeal.” Anders, 386 U.S. at 741-42. This standard, the Court
concluded, was not satisfied by the cursory letter submitted by
court-appointed counsel in Anders. Id. at 743-44. Rather, to
demonstrate a “conscientious examination” of the record, it
required that counsel provide “a brief referring to anything in
the record that might arguably support the appeal.” Id. at 744.
Since Anders, the Supreme Court has provided
additional guidance of what is expected of counsel to
demonstrate a “conscientious examination” of the record. In
McCoy v. Ct. of Appeals of Wisc., Dist. 1, for example, the
Supreme Court noted that counsel’s obligation under Anders is
to provide “a thorough review of the record and a discussion of
the strongest arguments revealed by that review.” 486 U.S.
429, 444 (1988). Likewise, in Penson v. Ohio, the Court
emphasized that counsel’s Anders brief “serves the valuable
purpose of assisting the court in determining both that counsel
in fact conducted the required detailed review of the case and
that the appeal is indeed so frivolous that it may be decided
without an adversary presentation.” 488 U.S. at 81-82.
We have addressed the expectations of counsel when
seeking to withdraw under Anders primarily in three cases:
United States v. Marvin, 211 F.3d 778 (3d Cir. 2000), Youla,
241 F.3d at 296, and Coleman, 575 F.3d at 316. That precedent
echoes the holdings of the Supreme Court in Anders, McCoy,
and Penson that to withdraw from representing an indigent
defendant while complying with the Constitution, counsel
must submit a brief evincing a “conscientious examination” of
the record. See Marvin, 211 F.3d at 779-80; Youla, 241 F.3d
at 299-300; Coleman, 575 F.3d at 319. But recognizing that
11
the “conscientious examination” standard is less than pellucid, 3
we attempted in these cases to bound the scope of the search
expected of counsel. Specifically, while we reiterated that
counsel must satisfy this Court that she has “scoured the record
in search of appealable issues” and “attempted to uncover the
best arguments” for her client, we also provided the assurance
and qualification that counsel need not raise every possible
appealable issue to meet this standard. Marvin, 211 F.3d at
780; Youla, 241 F.3d at 300; Coleman, 575 F.3d at 319.
Yet these exact same cases could be read to fault
counsel for failing to anticipate and address every issue
subsequently raised in her client’s pro se brief, regardless of
whether it was frivolous. 4 See, e.g., Marvin, 211 F.3d at 781
(“As an initial matter, [counsel] does not mention all the issues
3
The Supreme Court itself has acknowledged that Anders’s
standard is subject to criticism. In Smith v. Robbins, the Court
explained that this standard is “incoherent and thus impossible
to follow” because it requires counsel to submit a brief setting
forth “arguable issues” in order to convince the court that the
appeal is “wholly frivolous,” even though the Anders Court
had described an issue that was “arguable” as “therefore not
frivolous.” Smith, 528 U.S. at 282 (quoting Anders, 386 U.S.
at 744). But the Court declined to offer a resolution by
explaining that the Constitution neither resolved the issue nor
required the Court to do so. Id. at 284.
4
Occasionally, we may receive a defendant’s pro se
submission before or contemporaneously with his counsel’s
Anders motion. As discussed in more detail below, however,
the defendant’s pro se brief is typically filed only after counsel
has filed her Anders motion and brief and served them on the
defendant.
12
raised by his client and assure us that he has considered them
and found them patently without merit.”); Youla, 241 F.3d at
301 (“While the length of a brief does not necessarily
determine the merit of its arguments, we do not believe that
Youla’s counsel mentions all the issues raised by his client . . .
.”) (internal citation omitted); Coleman, 575 F.3d at 319
(“First, Coleman’s counsel does not mention the argument
raised by Coleman in his pro se brief to assure us that he has
found it to lack merit.”).
These seemingly incongruous positions have generated
confusion and have led panels of this Court to suggest in
precedential and nonprecedential opinions alike that failing to
anticipate and discuss each issue raised—even those entirely
frivolous—in a defendant’s pro se brief automatically renders
counsel’s Anders brief inadequate, or alternatively requires
counsel to file supplemental briefing addressing those
arguments. See, e.g., Marvin, 211 F.3d at 781; Coleman, 575
F.3d at 319; United States v. Parson, 663 F. App’x 184, 187
(3d Cir. 2016); United States v. Low, 525 F. App’x 106, 108-
09 (3d Cir. 2013); United States v. Fluker, 553 F. App’x 210,
212 (3d Cir. 2014). But the best reading of Marvin, Youla, and
Coleman repudiates any per se rule and supports the
conclusion that failure to address pro se issues will sometimes,
but not always, indicate inadequacy.
We begin with Marvin, where, as here, counsel filed an
Anders brief, and the defendant then submitted his own pro se
brief raising a host of new issues not raised by counsel. Marvin,
211 F.3d at 781. It is true that we criticized counsel for failing
to “mention all the issues raised by his client,” id, but the
fundamental reason we held counsel’s Anders brief deficient
was its failure to adequately address any appealable issue. Id.
13
For example, despite listing five potential issues for appeal at
the outset of his Anders brief, Marvin’s counsel only discussed
“a few of them in the body of the brief.” Id. And even in these
discussions, counsel failed to explain why the arguments were
frivolous; instead, to the extent he offered explanations, they
were incorrect and unsupported by law. Id. at 781-82. In this
context, the error we attributed to counsel for failing to
anticipate and address each of Marvin’s pro se arguments was
essentially illustrative of the overarching deficiency in
counsel’s brief.
The same holds true for Youla. There, counsel
submitted a cursory Anders brief containing only two pages of
analysis of the potential appealable issues. Youla, 241 F.3d at
300-01. He did not cite any case law, and failed to mention,
let alone discuss, any of the clear discrepancies between the
District Court’s Sentencing Guidelines calculation and what
was recommended in the defendant’s presentence investigation
report. Id. at 300-01. In contrast, the defendant submitted a 26-
page pro se brief, raising three issues for appeal, two of which
involved arguable errors in the District Court’s application of
the Sentencing Guidelines. Id. We observed that, “[w]hile the
length of a brief does not necessarily determine the merit of its
arguments,” id. at 301, counsel’s failure to address any of the
specific issues raised in his client’s pro se brief led us to doubt
the adequacy of his Anders brief. Id. Our determination,
however, was based on counsel’s overall failure to submit a
brief with sufficient indicia that counsel had “thoroughly
searched the record … in service of his client so that we might
confidently consider only those objections raised.” Id.
(internal citation omitted).
14
Coleman is no different. There, counsel submitted an
Anders brief that addressed only one potential appealable issue.
Coleman, 575 F.3d at 319. And, despite the fact that this Court
had previously remanded Coleman’s case for resentencing due
to intervening Supreme Court precedent, counsel’s Anders
brief failed “to fully address the very issue for which [this
Court had] remanded . . . .” Id. Thus, while we ascribed error
to counsel’s failure “to address legal challenges raised by [his
client],” it was the brief’s patent inadequacy that formed the
basis of this Court’s deficiency determination. Id. at 319-20.
Taken together these cases teach that counsel’s silence
concerning issues raised in a client’s pro se brief may be
relevant to the court’s adequacy determination, for example, to
illustrate counsel’s more general failure to identify or discuss
potentially appealable issues, or to highlight her failure to raise
non-frivolous issues that were raised pro se. But counsel’s
omission of frivolous issues raised by the defendant has little,
if any, relevance where counsel’s brief, on its own terms,
reflects a conscientious examination of the record and
adequately discusses the potentially appealable issues. In that
circumstance, rejecting counsel’s Anders brief as inadequate
because of a per se rule would waste the resources and time of
both counsel and the Court.
The absurdity of a per se rule is even more apparent
when considering the context in which counsel files an Anders
brief. Like all appeals, an appeal where counsel for a criminal
defendant files an Anders brief begins with the production of
all relevant transcripts and counsel’s review of the entire
record. After her review, counsel typically consults, or
attempts to consult, with her client about potentially appealable
issues, as required by professional norms and ethics rules. See,
15
e.g., Pa. R. Pro. Conduct 1.4(a)(2) (“A lawyer shall . . .
reasonably consult with the client about the means by which
the client’s objectives are to be accomplished.”). If counsel
concludes that there are no non-frivolous issues to raise on
appeal, then under L.A.R. 109.2(a) counsel files an Anders
brief and motion to withdraw, with service on both the
defendant and the Government. Only after counsel files and
serves her Anders brief and corresponding motion does the
defendant have the opportunity to file a pro se response brief.
L.A.R. 109.2(a). At that point, having received counsel’s
Anders brief and any pro se brief filed by the defendant, the
Government files a brief responding to the Anders brief and
any pro se brief. Id.
With that typical Anders procedure in mind, it takes no
feat of imagination to envision the mischief a per se rule would
cause. A defendant might not discuss every issue he is
contemplating when consulting with counsel or might refuse to
meet with counsel altogether. But because counsel typically
files her Anders brief before the defendant’s pro se brief, a per
se rule would effectively punish such counsel for not being
clairvoyant. That is not a skill we require of defense counsel
generally, let alone court-appointed counsel, who, as here,
have heeded the Court’s call to public service and devoted their
time and effort to the representation of indigent defendants.
A defendant might communicate an issue to counsel
that is not fairly characterized as potentially appealable, and
that counsel therefore opts against including in her Anders
brief. Yet under a per se regime, all a criminal defendant
would need to do to demonstrate the inadequacy of counsel’s
Anders brief would be to review the brief after it was served
16
and then submit a pro se brief raising any other issue, however
frivolous.
Alternatively, a per se rule would require counsel to file
two Anders briefs—one with her motion, and then a second
supplemental one addressing every wholly frivolous argument
raised in her client’s pro se brief—in order to avoid a finding
of inadequacy. Under our Local Rules, that would either
require counsel to file a motion for leave to file that
supplemental brief, see L.A.R. 31.3, 111.5(c), or require that
this Court order supplemental briefing, see L.A.R. 109.2(a),
creating needless work for counsel and the Court and
unnecessarily complicating this Court’s resolution of Anders
motions. While a supplemental filing may well be warranted
if the defendant identifies a non-frivolous issue not originally
addressed by counsel, we have never required supplemental
briefing by counsel where the issues raised pro se are
determined to be frivolous, and we reject such a requirement
today.
Instead, we clarify that counsel’s failure to address
issues raised in her client’s pro se brief does not render an
Anders brief inadequate per se. 5 It may be relevant, however,
5
Other Courts of Appeals are in accord. See, e.g., United
States v. Coxton, 314 F. App’x 550, 551 (4th Cir. 2008) (noting
that defendant filed pro se brief that raised an issue not reached
by counsel’s Anders brief, but nevertheless affirming the
district court’s judgment and allowing counsel to withdraw);
United States v. Burns, 69 F.3d 540 (7th Cir. 1995) (finding
counsel’s brief adequate despite client’s subsequent pro se
brief raising a new issue); United States v. Trevillion, 770 F.
App’x 302, 303 (8th Cir. 2019) (noting that defendant filed pro
17
in illustrating a more general failure to identify and discuss
potentially appealable issues, in highlighting counsel’s failure
to raise non-frivolous issues identified by the defendant, or in
otherwise demonstrating that counsel has failed to provide
“sufficient indicia that [she] thoroughly searched the record
and the law in service of [her] client,” Marvin, 211 F.3d at 781,
and “diligently investigated the possible grounds of appeal.”
Anders, 386 U.S. at 741-42.
Of course, “what constitutes ‘sufficient indicia’ [of a
conscientious examination] cannot be laid down in a formulaic
manner,” as it will vary with the nature of the proceedings in
the district court. Id. No doubt there are certain issues that
arise with such frequency that counsel’s failure to address them
ordinarily will be indicative of deficiency, such as the district
court’s compliance with Fed. R. Crim. P. 11 and the
voluntariness of the plea in the context of a guilty plea, or, in
the context of sentencing, the court’s compliance with Fed. R.
Crim. P. 32, the adequacy of the court’s reasons for the
sentence imposed, and its calculation of the sentence based on
se brief raising an additional issue not addressed by counsel’s
Anders brief, but granting counsel’s motion to withdraw);
United States v. Delacruz-Soto, 414 F.3d 1158, 1160-61, 1169
(10th Cir. 2005) (observing that after counsel filed Anders
brief, defendant submitted a pro se letter raising an ineffective
assistance of counsel argument not addressed by his counsel’s
Anders brief, and finding counsel’s submission adequate and
granting motion to withdraw).
18
the Sentencing Guidelines. 6 But ultimately, our adequacy
determination must be made on a case-by-case basis. So
6
To assist counsel in identifying these and other common
issues for appeal, this Court has published an Anders Checklist
and Anders Guidelines for counsel seeking to withdraw from
representation, see Third Circuit Anders
Checklist,https://www.ca3.uscourts.gov/sites/ca3/files/ANDE
RS%20CHECKLIST.pdf (last visited Sept. 13, 2022); Third
Circuit Anders Guidelines, https://www.ca3.uscourts.gov/
sites/ca3/files/ANDERS%20GUIDELINES%203dCir.pdf
(last visited Sept. 13, 2022), as have a number of our sister
circuits, see, e.g., How to File an Anders Brief in the United
States Court of Appeals for the Second Circuit,
https://www.ca2.uscourts.gov/clerk/case_filing/appealing_a_c
ase/pdf/Anders%20brief%20instructions%20and%20checklis
t%20combined%2010-11.pdf (last visited Sept. 13, 2022)
(instructing counsel, inter alia, that an Anders brief must
include a copy of the transcript of the proceedings below, and
that in guilty plea cases an Anders brief “ordinarily must
contain” an examination of the validity of the guilty plea, an
examination of the validity and scope of any appellate waiver,
and an examination of the government’s compliance with the
plea agreement); Fifth Circuit Anders Guidelines,
http://www.ca5.uscourts.gov/clerk/AndersGuidelines.pdf (last
visited Sept. 13, 2022) (instructing counsel, inter alia, that if
she plans to file an Anders motion and supporting brief in a
jury or bench trial case, at a minimum, her brief must include
a discussion of: the sufficiency of the defendant’s indictment,
any adverse rulings pretrial, during trial, or post trial, jury
selection, and jury instructions); Sixth Circuit Notes on Anders
Cases,https://www.ca6.uscourts.gov/sites/ca6/files/documents
19
eschewing any per se rule, we turn now to the Anders brief at
issue in this case.
B. Counsel’s Anders Brief is Adequate
Here, Langley’s counsel has filed a brief that, on its
face, fulfills his Anders obligations and the requirements of
L.A.R. 109.2(a). Counsel adequately explains why there are
no non-frivolous appealable issues regarding the sufficiency of
Langley’s plea hearing and the propriety and length of
Langley’s sentence, and given counsel’s explanations we do
not doubt that he conducted a “conscientious examination” of
the record. Anders, 386 U.S. at 744.
As for Langley’s change of plea, counsel thoroughly
reviewed the District Court’s colloquy and confirmed that it
addressed each of the factors required by Fed. R. Crim. P.
11(b)(1). See supra Section III.A. For example, he points out
that the District Court addressed Langley directly and made
certain that he understood the charge, the factual basis for his
plea, and the terms and effect of his plea, including the plea’s
limited appellate waiver. See McCarthy v. United States, 394
U.S. 459, 464-67 (1969). Counsel also noted that the Court
ensured Langley’s plea was made knowingly and voluntarily
and that Langley comprehended the penalties he faced. See
/cja/andersnotesrev.wpd__0.pdf (last visited Sept. 13, 2022)
(explaining that an Anders brief must include a recitation of
substantive and procedural facts, and at least one issue of
potentially arguable merit); Practitioner’s Handbook for
Appeals to the United States Court of Appeals for the Seventh
Circuit, https://www.ca7.uscourts.gov/rules-procedures/
Handbook.pdf (last visited Sept. 13, 2022).
20
Fed. R. Crim. P. 11; United States v. Tidwell, 521 F.3d 236,
251-52 (3d Cir. 2008). And he observed that Langley provided
affirmative responses to the Court’s inquiries, confirming his
understanding of the rights he was waiving. United States v.
Trott, 779 F.2d 912, 914 (3d Cir. 1985).
Second, Langley’s counsel correctly asserts that
Langley’s sentence is not subject to challenge on appeal. As
explained in counsel’s brief, Langley may file an appeal for
review of his sentence only if any of the conditions in 18
U.S.C. § 3742 applies, which is not the case here. The District
Court’s sentence was not: (1) imposed in violation of law; (2)
imposed as a result of an incorrect application of the Federal
Sentencing Guidelines; (3) greater than the sentence specified
in the applicable guideline range; or (4) plainly unreasonable.
See 18 U.S.C. § 3742. In fact, as Langley’s counsel details,
quite the opposite is true. The sentence Langley received was
based on a correct calculation of Langley’s Criminal History
Category, see U.S.S.G. § 4A1.2(e)(1), and a reasonable
application of the Federal Sentencing Guidelines.
See U.S.S.G. § 1B1.1. Indeed, Langley was sentenced to the
mandatory minimum of 60-months imprisonment, which was
far lower than the guideline range of 110 to 137 months, thanks
to his counsel’s work in obtaining a substantial downward
variance.
In short, the Anders brief in this case demonstrates that
counsel scoured the record, including both Langley’s plea and
sentencing hearings, for the best possible arguments for his
client. Accordingly, counsel has met his obligations under
Anders.
21
C. Our Review Establishes No Non-Frivolous
Issues On Appeal
Because we are satisfied that Langley’s counsel has
submitted an adequate Anders brief, we proceed to the second
step of our Anders inquiry and review the record before us,
guided by counsel’s brief, in search of any non-frivolous
issues. Youla, 241 F.3d at 301. Here, our review of the record
reveals no issues of arguable merit in this appeal.
Given the record in this case, see supra Section I, and
the explanations in counsel’s Anders brief, see supra Section
II.B, we concur with counsel that there are no non-frivolous
appealable issues with respect to Langley’s plea hearing or his
sentence. But even if we were to consider the issues identified
by Langley in his pro se brief, which is not required because
we find his counsel’s Anders brief adequate, see Youla, 241
F.3d at 301, our conclusion would not change.
The three issues raised by Langley in his pro se brief
are: (1) that the District Court erred by incorrectly applying the
sentencing guidelines “[b]ased on a policy disagreement [o]n
the ‘18:1 v. 1:1 crack to powder cocaine’ ratio,” Pro Se Br. at
3; (2) that at the sentencing hearing his attorney did not bring
up that Langley’s past convictions were old and that he had
completed two re-entry programs; and (3) that the District
Court erred in calculating Langley’s Criminal History
Category by counting Langley’s convictions from 1995 and
2001. Each of these arguments lack merit.
As a threshold matter, our precedent would require that
we decline to exercise our jurisdiction to review the merits of
Langley’s arguments about the powder/crack disparity, the re-
22
entry programs, and the age of his past convictions because he
waived them as part of his plea agreement. We will enforce an
appellate waiver where we conclude that: (1) the issues a
defendant pursues on appeal fall within the scope of the waiver;
(2) the defendant knowingly and voluntarily agreed to the
waiver; and (3) enforcing the waiver would not work a
miscarriage of justice. See United States v. Corso, 549 F.3d
921, 927 (3d Cir. 2008). On this record, each condition is
readily satisfied.
Langley’s appellate waiver applies to “any appeal . . .
challeng[ing] the sentence imposed by the sentencing court if
that sentence is 5 years or below.” App. at 74. Langley
received the mandatory minimum sentence of 5 years, and as
Langley’s powder/crack disparity argument seeks to challenge
the duration of his sentence, it thus falls within the scope of his
waiver. Nor is there any question Langley entered his plea
knowingly and voluntarily when he confirmed as much during
his plea hearing. Lastly, Langley’s appeal is not one of the
“rare” and “unusual” situations which requires invalidating his
waiver to avoid a miscarriage of justice as it does not implicate
fundamental rights or constitutional principles. United States
v. Grimes, 739 F.3d 125, 131 (3d Cir. 2014). Langley’s waiver,
then, would be enforceable and would preclude consideration
of his argument in any event. 7
7
Even if Langley had not waived this argument, it would still
be unavailing. We perceive no error in the District Court’s
sentencing of Langley. And as noted by the District Court
during Langley’s sentencing hearing, these arguments could
have no effect on Langley’s sentence as he received the
mandatory minimum of 60 months. See 21 U.S.C. §
841(b)(1)(B)(iii). To the extent Langley may be seeking to
23
Our review also satisfies us that Langley’s third
argument is without merit. We apply an abuse-of-discretion
standard to the review of sentencing decisions. United States v.
Tomko, 562 F.3d 558, 561 (3d Cir. 2009). In considering
whether a sentence is reasonable, we must first “ensure that the
district court committed no significant procedural error” before
examining the “totality of the circumstances” in assessing
substantive reasonableness. Gall v. United States, 552 U.S. 38,
51 (2007). Sentences are substantively reasonable “unless no
reasonable sentencing court would have imposed the same
sentence on that particular defendant for the reasons the district
court provided.” Tomko, 562 F.3d at 568.
Here, the District Court committed no procedural errors.
Though Langley disputes the District Court’s counting of his
convictions greater than fifteen years old, in calculating his
Criminal History Category the Court was right to include them.
As it explained to Langley at his sentencing hearing, the last
day of incarceration for each of these offenses occurred within
the fifteen-year window for counting offenses under the
Federal Sentencing Guidelines, so each was properly counted
raise an ineffective assistance claim, it would be premature, see
Massaro v. United States, 538 U.S. 500, 505-07 (2003), and
would be baseless: counsel effectively negotiated a plea deal
and, despite Langley’s extensive criminal history, was able to
persuade the Government and the Court to settle on the lowest
sentence available. See United States v. Hankerson, 496 F.3d
303, 311-12 (3d Cir. 2007) (finding counsel’s representation
effective because, inter alia, counsel argued for and obtained a
downward departure for his client).
24
under U.S.S.G. § 4A1.2(e)(1). Nor can we conclude that
Langley’s sentence was substantively unreasonable when he
stipulated to its reasonableness in his plea agreement and
ultimately received the lowest possible sentence permitted by
the statute for his offense of conviction. Langley’s sentencing
arguments are thus also frivolous.
III. CONCLUSION
For the foregoing reasons, we will grant counsel’s
Anders motion and dismiss Langley’s appeal. 8
8
In accordance with L.A.R. 109.2(b) we state that the issues
presented here lack legal merit, and so Langley’s counsel is not
required to file a petition for writ of certiorari with the Supreme
Court.
25