                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-21-2008

USA v. Richard Hughes
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2107




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 06-2107


                          UNITED STATES OF AMERICA

                                           v.

                                RICHARD HUGHES,
                                         Appellant


                      Appeal from the United States District Court
                       for the Western District of Pennsylvania
                            (D.C. Criminal No. 05-cr-00153)
                      District Judge: Honorable Arthur J. Schwab


                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 31, 2008

                 Before: RENDELL and CHAGARES, Circuit Judges,
                           and POLLAK, *District Judge.

                              (Filed: February 21, 2008)


                              OPINION OF THE COURT




       *Honorable Louis H. Pollak, Senior Judge of the United States District Court for
the Eastern District of Pennsylvania, sitting by designation.
RENDELL, Circuit Judge.

       Richard Hughes was charged with possession of a firearm by a convicted felon in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He pled guilty on October 18, 2005, and,

on March 24, 2006, the District Court sentenced Hughes to the mandatory minimum

sentence of 15 years’ incarceration pursuant to the Armed Career Criminal Act, 18 U.S.C.

§ 924(e). Hughes timely appealed. Counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), requesting permission to withdraw because he is unable

to find any non-frivolous issues for appeal after a conscientious review of the record.

Hughes was given notice of his counsel’s intent to withdraw and has not filed a pro se

brief. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). For the

reasons stated below, we will grant counsel’s motion to withdraw and affirm the District

Court’s judgment of sentence.

       Evaluation of an Anders brief requires a twofold inquiry: (1) whether counsel has

thoroughly examined the record for appealable issues and has explained why any such

issues are frivolous; and (2) whether an independent review of the record presents any

nonfrivolous issues. United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Where the

Anders brief appears adequate on its face, our review is limited to the portions of the

record identified in the brief, along with any issues raised by an appellant in a pro se

brief. See id. at 301. We conclude that the brief in this case is adequate, and, in the

absence of a pro se brief by the appellant, it will guide our independent review of the



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record.

       Pursuant to his obligation under the first prong of our analysis, counsel has

identified several potential, but frivolous, issues. By entering an unconditional guilty plea

to two Counts, Hughes waived all claims for appellate relief with the exception of claims

(1) that the court lacked jurisdiction to accept the plea, (2) that the plea is invalid under

applicable statutory and constitutional standards, and (3) that the sentence is illegal. See

United States v. Broce, 488 U.S. 563 (1989). Neither of the first two categories of

unwaived claims applies as the Court had jurisdiction under 18 U.S.C. § 3231 and the

Change of Plea hearing shows that the guilty plea was valid, knowing, and voluntary

pursuant to Fed. R. Crim. P. 11 and Boykin v. Alabama, 395 U.S. 238 (1969). Counsel

identifies three issues related to Hughes’ sentence.

       First, counsel raises the issue of the applicability of the Armed Career Criminal

Act (ACCA) to Hughes. Hughes incurred more than the three prior convictions necessary

for the ACCA to apply. Hughes’ criminal record includes a plea of guilty to burglary in

1989 and a plea of guilty to 17 counts of burglary in 1991. PSR ¶¶38, 44 & 45. Although

17 of the prior convictions result from a single judicial proceeding, they arise from

separate criminal episodes on 16 different dates and in 12 separate locations and thus are

treated as multiple convictions. See United States v. Randolph, 364 F.3d 118, 123-24 (3d

Cir. 2004). Counsel also notes that Hughes received more than constitutionally adequate

notice of the government’s intention to seek the enhanced sentence under the ACCA. See



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United States v. Mack, 229 F.3d 226, 231-32 (3d Cir. 2000). In particular, the Indictment

charged Hughes with violating 18 U.S.C. §§ 922(g)(1) and 924(e).

       Second, counsel recognizes that the government met its burden of proof to support

the mandatory minimum sentence under the ACCA such that any argument based on the

burden of proof would be frivolous. At sentencing, both Hughes and his trial counsel

admitted that the seventeen prior burglaries included all of the elements of generic

burglary and therefore qualified as predicate offenses for the purposes of the ACCA. See

United States v. Bennett, 100 F.3d 1105, 1107-10 (3d Cir. 1996).

       Last, a review of the sentencing transcript reveals that the District Court complied

with all of the requirements of Fed. R. Crim. P. 32 that were applicable in Hughes’ case.

       Our independent review of the record yields no other non-frivolous arguments that

could possibly support an appeal and we are satisfied that all the requirements of

Anders have been met. Accordingly, we will AFFIRM the judgment of the District Court

and, in a separate order, GRANT counsel’s motion to withdraw.




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