                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-16-2006

USA v. Byrd
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1850




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                                            NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT


               No. 05-1850


    UNITED STATES OF AMERICA

                     v.

            WILLIAM BYRD
                  a/k/a
           DANNY JOHNSON
                  a/k/a
            WILLIAM BILAL
                  a/k/a
             BILAAL BYRD
                  a/k/a
             BILLIE BYRD
                  a/k/a
              BILLY BYRD

                          William Byrd,
                                Appellant




Appeal from the United States District Court
        for the District of New Jersey
 (D.C. Criminal Action No. 03-cr-00311-1)
District Judge: Honorable Faith S. Hochberg


Submitted Under Third Circuit LAR 34.1(a)
             March 7, 2006
                    Before: RENDELL and AMBRO, Circuit Judges,
                             and SHAPIRO,* District Judge

                             (Opinion filed: March 16, 2006)


                                         OPINION


AMBRO, Circuit Judge

       On February 4, 2004, William Byrd pled guilty to one count of possession of a

firearm by a convicted felon. As a result, the District Court sentenced him to 115 months

in prison. Byrd appeals his sentence, but his appointed counsel filed an Anders motion to

withdraw as counsel, asserting that all potential grounds for appeal are frivolous.

Because we agree, we affirm Byrd’s sentence and grant counsel’s motion to withdraw.

                                             I.

       Under Anders v. California, 386 U.S. 738 (1967), if counsel “finds [a] case to be

wholly frivolous, after a conscientious examination” of the potential grounds for appeal,

s/he should “advise the court and request permission to withdraw.” Id. at 744. This

request must be accompanied by “a brief referring to anything in the record that might

arguably support the appeal,” id., “explain[ing] to the court why the issues are frivolous,”

United States v. Marvin, 211 F.3d 778, 781 (3d Cir. 2000), and demonstrating that s/he

has “thoroughly scoured the record in search of appealable issues,” id. at 780. A copy of



       *
       Honorable Norma L. Shapiro, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.

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counsel’s brief must be furnished to the appellant, who must be given time to raise non-

frivolous arguments in a pro se brief. Anders, 386 U.S. at 744; Third Circuit LAR

109.2(a) (2000). Byrd was notified of his right to file a pro se brief but he has failed to

do so.

         We “confine our scrutiny to those portions of the record identified by an adequate

Anders brief . . . [and] those issues raised in Appellant’s pro se brief.” United States v.

Youla, 241 F.3d 296, 301 (3d Cir. 2001). We do not “comb the record . . . for possible

non-frivolous issues that both the lawyer and his client may have overlooked,” as “[our]

duty is merely to determine whether counsel is correct in believing those grounds [raised

are] frivolous.” United States v. Wagner, 103 F.3d 551, 552-53 (7th Cir. 1996). We shall

grant counsel’s Anders motion to withdraw if we believe “that the attorney has provided

the client with a diligent and thorough search of the record for any arguable claim,”

McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988), and if we conclude

“that the appeal lacks any basis in law or fact,” id. at 438 n.10.

                                              II.

         As we write for the parties, only a brief summary of pertinent facts and procedural

history is necessary. On January 13, 2003, a Newark, New Jersey police officer observed

two men engaged in a physical altercation on the street. One of the men, who was later

identified as Byrd, was standing over the other man, William Johnson, who was lying

face down on the sidewalk. As the officer approached the scene, he discerned that Byrd



                                               3
was pointing a handgun at Johnson, who appeared to be struggling to gain possession.

Byrd ignored the officer’s commands to drop the handgun and the altercation continued

until Johnson gained control over the gun. Byrd attempted to flee the scene on foot but

was quickly apprehended and taken into custody. He later was charged with possession

of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).

         Byrd entered into a written plea agreement with the United States Attorney’s

Office, agreeing to the following stipulations: (1) due to his crime of conviction, U.S.S.G.

§ 2K2.1 was Byrd’s applicable Sentencing Guideline; (2) he had previously sustained two

felony convictions for distributing and possessing with the intent to distribute a controlled

substance on or near school property in violation of N.J. Stat. Ann. § 2C:35-7; (3) his

base offense level was 24; (4) because he committed an aggravated assault with a firearm

specific offense characteristic (i.e., possession of a firearm in connection with another

felony offense), § 2K2.1(b)(5) applied for a four-level upward adjustment; (5) he

possessed ammunition and one loaded firearm on the date in question; and (6) he was

entitled to a three-point downward adjustment for acceptance of responsibility under §

3E1.1.

         Consistent with the stipulations provided by the plea agreement, the District Court

correctly calculated Byrd’s applicable sentencing range at 110 to 137 months

imprisonment. Because Byrd’s offense carried a statutory maximum of 120 months,

however, his range was adjusted to 110 to 120 months. The Court sentenced Byrd to 115



                                              4
months imprisonment, three years supervised release, a fine of $1,000, and a special

assessment of $100. It also imposed a discretionary alternative sentence using the

statutory range of 0 to 120 months as its parameters and, again, sentenced Byrd to 115

months imprisonment.

       Defense counsel’s Anders brief raises two issues: (1) whether the District Court

made findings of fact with regard to Byrd’s sentence in violation of Blakely v.

Washington, 542 U.S. 296 (2004); and (2) whether the District Court sentenced Byrd in

violation of United States v. Booker, 543 U.S. 220 (2005). We agree with defense

counsel that any Blakely argument raised by Byrd is frivolous. This is because he was

sentenced solely on facts that he admitted in his plea colloquy and facts admitted by

defendants are expressly exempted from Blakely’s ambit. See 542 U.S. at 303 (stating

“the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may

impose solely on the basis of the facts reflected in the jury verdict or admitted by the

defendant” (emphasis added)).

       Defense counsel also argues that any Booker argument raised by Byrd would be

frivolous because, while the District Court imposed a mandatory 115 month sentence on

Byrd pursuant to the Guidelines, it also imposed an identical alternative sentence under a

indeterminate sentencing scheme in anticipation of the Supreme Court’s ruling in Booker.

This contention is on point with our decision in United States v. Hill, where we held that

“where . . . a District Court clearly indicates that an alternative sentence would be



                                              5
identical to the sentence imposed under the Guidelines,” a remand is not

warranted—because “any error that may attach to a defendant’s sentence under Booker is

harmless.” 411 F.3d 425, 426 (3d Cir. 2005). We, therefore, affirm the sentence imposed

by the District Court and grant counsel’s motion to withdraw.




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