                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-8-2000

United States v. Marvin
Precedential or Non-Precedential:

Docket 98-2086




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Recommended Citation
"United States v. Marvin" (2000). 2000 Decisions. Paper 92.
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Filed May 8, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-2086

UNITED STATES OF AMERICA

v.

DONALD WAYNE MARVIN, Appellant

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. 98-cr-00200)
District Judge: Honorable Franklin S. VanAntwerpen

Submitted Under Third Circuit LAR 34.1(a)
November 4, 1999

Before: BECKER, Chief Judge, GREENBERG, and
CUDAHY,* Circuit Judges.

(Filed May 8, 2000)

       PHILIP D. LAUER, ESQUIRE
       Philip D. Lauer, P.C.
       704 Washington Street
       Easton, PA 18042

       Counsel for Appellant

       SETH WEBER, ESQUIRE
       Assistant United States Attorney
       615 Chestnut Street
       Philadelphia, PA 19106

       Counsel for Appellee
_________________________________________________________________

* Honorable Richard D. Cudahy, United States Circuit Judge for the
Seventh Circuit, sitting by designation
OPINION OF THE COURT

BECKER, Chief Judge.

I.

Donald Wayne Marvin pled guilty to conspiracy, robbery,
and the use of a firearm during a crime of violence. Marvin
wanted to appeal aspects of his sentencing, but Marvin's
counsel filed an Anders motion, requesting to withdraw
from representing him and expressing his belief that there
were no nonfrivolous arguments for appeal. After reviewing
the brief, we conclude that it is inadequate, and deny
counsel's motion.

In Anders v. California, 386 U.S. 738 (1967), the
Supreme Court explained the general duties of a lawyer
representing an indigent criminal defendant on appeal
when the lawyer seeks leave to withdraw from continued
representation on the grounds that there are no
nonfrivolous issues to appeal.1Anders struck down a
process that allowed courts of appeals to accept a mere
assertion by counsel that he or she found the appeal to be
"without merit." Id. at 743. The Court suggested, however,
that if, after a "conscientious examination" of the record,
counsel found no nonfrivolous issues for appeal, he or she
could submit a brief "referring to anything in the record
that might arguably support the appeal." Id. at 744. Many
_________________________________________________________________

1. The duties find their roots in the Due Process and Equal Protection
Clauses, which ensure that an indigent criminal defendant has the right
to "adequate and effective appellate review." Griffin v. Illinois, 351
U.S.
12, 20 (1956). This includes the right to effective assistance of counsel.
See Douglas v. California, 372 U.S. 353, 355-58 (1963). This right is
presumptive, and not confined to those cases in which an independent
review of the record convinces an appellate court that counsel "would be
helpful to the defendant or to the court." Id. at 355. Anders explained
that, while there is some limit to this right, in that counsel may be
permitted to withdraw from entirely frivolous appeals, the court must
use procedures to protect against counsel withdrawing when the issues
are not frivolous. See 386 U.S. 738, 744.

                               2
courts took this as a prescription, but the Supreme Court
recently explained that it was only a suggestion. See Smith
v. Robbins, 120 S. Ct. 746 (2000). Each state is free to use
any process, Smith explained, so long as defendants' rights
to effective representation are not compromised. See id. at
753.2

The relevant Third Circuit rule tracks the Anders
suggestion:

         Where, upon review of the district court record, trial
         counsel is persuaded that the appeal presents no issue
         of even arguable merit, trial counsel may file a motion
         to withdraw and supporting brief pursuant to Anders v.
         California, 386 U.S. 738 (1967), which shall be served
         upon the appellant and the United States. The United
         States shall file a brief in response. Appellant may also
         file a brief in response pro se. After all briefs have been
         filed, the clerk will refer the case to a merits panel. If
         the panel agrees that the appeal is without merit, it will
         grant trial counsel's Anders motion, and dispose of the
         appeal without appointing new counsel. If the panel
         finds arguable merit to the appeal, it will discharge
         current counsel, appoint substitute counsel, restore
         the case to the calendar, and order supplemental
         briefing.

Third Circuit Rule 109.2(a).

This rule, like the Anders case itself, provides only a
general explanation of the contours of the court's and
counsel's obligations in the Anders situation. However, two
_________________________________________________________________

2. In Smith, the Court approved California's current approach, by which
counsel files a brief which summarizes the relevant procedure and facts
and

         attests that he has reviewed the record, explained his evaluation
of
         the case to his client, provided the client with a copy of the
brief,
         and informed the client of his right to file a pro se supplemental
         brief. He further requests that the court independently examine the
         record for arguable issues. . . . [H]e is silent on the merits of
the
         case and expresses his availability to brief any issues on which
the
         court might desire briefing.

120 S.Ct. at 753.
3
opinions of the Court of Appeals for the Seventh Circuit,
United States v. Tabb, 125 F.3d 583 (7th Cir. 1997), and
Wagner v. United States, 103 F.3d 551 (7th Cir. 1996), have
shed new light on the interpretation of Anders . These
opinions fill in gaps left by Anders and its early progeny
with respect to two critical questions: (1) the responsibilities
of counsel in submitting an Anders brief (Tabb); and (2) the
duties of the courts of appeals with respect to an
independent review of the record (Wagner). 3 In this case,
because we conclude that the Anders brief was inadequate,
we need only address the first issue.

In Tabb and its companion case, United States v. Dale
(consolidated with Tabb on appeal) the Seventh Circuit
explained the dual duties of counsel in the Anders
situation: (1) to satisfy the court that he or she has
thoroughly scoured the record in search of appealable
issues; and (2) to explain why the issues are frivolous. See
125 F.3d at 585, 586. With regard to the first duty, the
panel recognized that counsel need not, in an Anders brief,
raise and reject every possible complaint. See id. at 585.
However, "the brief at minimum must assure us that
[counsel] has made a sufficiently thorough evaluation of the
_________________________________________________________________

3. In Wagner, Judge Posner concluded that where an Anders brief
appeared adequate, it would be inappropriate for a panel "to comb the
record . . . searching for possible nonfrivolous issues that both the
lawyer and his client may have overlooked and, if wefind them,
appointing a new lawyer and flagging the issues we've found for him."
103 F.3d at 553. Rather

       [i]f the brief explains the nature of the case and fully and
       intelligently discusses the issues that the type of case might be
       expected to involve, the Court will . . . confine its scrutiny of
the
       record to the portions of it that relate to the issues discussed in
the
       brief. If in light of this scrutiny it is apparent that the
lawyer's
       discussion of the issues that he chose to discuss is responsible
and
       if there is nothing in the district court's decision to suggest
that
       there are other issues the brief should have discussed, the Court
       will have enough basis for confidence in the lawyer's competence to
       forgo scrutiny of the rest of the record.

Id. Although this approach appears sound, we have no occasion to adopt
it today, as we reject the Anders brieffiled in this case for facial
inadequacies.
4
record to conclude that no further discussion of other areas
of the case is necessary." Id. Applied to the facts of Tabb,
the court was troubled because

       [w]hile [the brief] makes a series of points that are true,
       it gives no indication that counsel has determined,
       following a proper examination of the record, that there
       is no nonfrivolous basis for the appeal. We wish to
       emphasize that counsel need not discuss every possible
       issue. Our concern here is not counsel's decision not to
       press certain issues, but rather that his discussion
       does not indicate that he made a reasoned decision not
       to raise the issues he has omitted. While we give broad
       discretion to attorneys to decide what matters to
       discuss in an Anders brief, the degree to which we rely
       on counsel to determine whether an appeal is
       warranted requires sufficient indicia in the brief that
       counsel has made a sound judgment.

Id. Obviously, what constitutes "sufficient indicia" cannot
be laid down in a formulaic manner, and individual panels
will have to apply their better judgment to the
circumstances of each case.

With regard to the second duty, the court held that
counsel must also explain to the court why the issues are
frivolous. Discussing Dale, the companion case, the Tabb
court noted that counsel mentioned several issues but

       rather than explaining why these issues would be
       frivolous, counsel argues the issues . . . as though they
       had merit (having disclaimed the arguments as his
       own, and indicating he was making them only because
       his client requested that he do so). . . . He simply
       makes the arguments that [the defendant] requested
       and then states his belief that other arguments are
       frivolous, as though this were readily apparent. We do
       not think it is, and therefore we must deny counsel's
       motion to dismiss the appeal and withdraw from the
       case.

Id. at 586.

We follow Tabb and adopt its precepts. We thus conclude
that, except in those cases in which frivolousness is patent,

                               5
we will reject briefs, like those encountered in Tabb, in
which counsel argue the purportedly frivolous issues
aggressively without explaining the faults in the arguments,
as well as those where we are not satisfied that counsel
adequately attempted to uncover the best arguments for his
or her client. In this case, we reject the Anders petition for
both reasons.

II.

Donald Wayne Marvin was charged with, and plead guilty
to, conspiracy to interfere with interstate commerce by
robbery, interference with interstate commerce by robbery,
and using a firearm during a crime of violence. After
receiving a presentence report and conducting a sentencing
hearing, the court sentenced him. Marvin pressed for an
appeal, claiming that there were several sentencing errors,
but his counsel filed a brief with this court stating that he
believed there to be no nonfrivolous arguments for appeal.
Marvin submitted his own brief, opposing the Anders
motion and raising a host of other issues.

As in Tabb, Marvin's counsel has not provided us with
sufficient indicia that he has explored all possible issues for
appeal. As an initial matter, he does not mention all the
issues raised by his client and assure us that he has
considered them and found them patently without merit.
Furthermore, while he lists five issues for potential appeal
in the beginning of his motion, he only discusses a few of
them in the body of the brief. Moreover, the record counsel
has provided does not include the formal sentencing
objections (although the transcript of the sentencing
hearing indicates that he made such objections prior to the
hearing), which might clarify why he ultimately abandoned
those objections. Counsel simply has not provided sufficient
indicia that he thoroughly searched the record and the law
in service of his client so that we might confidently consider
only those objections raised.

Additionally, as in Tabb's companion case Dale, counsel
does not explain why those issues that he does address are
legally frivolous. For example, the heading of thefirst
section of the Anders brief is titled: "The District Court

                                6
Erred in Assessing an Enhancement to the Sentencing
Guideline Calculation for Possession, Display or
Brandishment of a Firearm." In this section, counsel lays
out Marvin's contentions without explaining why these
contentions are flawed. Likewise, the third section entitled
"The District Court Erred in Assessing a Two-Level
Enhancement to the Sentencing Guideline Offense Level for
Appellant's Role in the Offense" is argued vigorously by
Marvin's lawyer, without an explanation for why the court
should consider the appeal frivolous.

The argument in the second section also falls short. In
this section, entitled "The District Court Erred in Assigning
One Criminal History Point for a Conviction Which Should
Not Have Been Included," counsel lays out an outline of
Marvin's argument and then states:

       Counsel is aware of no supporting law for this
       assertion, as the criminal history point in Paragraph
       71 was assigned for a "prior sentence" pursuant to
       U.S.S.G. S 4A1.1(c), which requires the addition of a
       point for each prior sentence [up to 4] which does not
       result in the length of imprisonment necessary to
       count under SS4A1.1(a) or 4A1.1(b). Plainly, these were
       prior "sentences," as defined at U.S.S.G.S 4A1.2(a),
       and were correctly counted.

The statute to which counsel cites does not, however,
plainly refute Marvin's argument. Therefore, even this, the
most extensive effort made in the brief to demonstrate the
inadequacy of Marvin's claims, is cursory and conclusory.

For the foregoing reasons, we reject the Anders brief filed
by counsel in this case. By so doing, we do not express any
opinion as to the merits of any issues in Marvin's
underlying appeal. We merely note that we are not yet
ready to decide this case rudderless, without the guidance
of counsel. The motion of counsel for leave to withdraw will
be denied. Counsel for appellant shall submit further
briefing consistent with this opinion.4
_________________________________________________________________

4. Third Circuit Rule 109.2(a) provides that if the court finds no
arguable
merit it will grant the motion, while if the panelfinds arguable merit, it

                               7
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

_________________________________________________________________

will discharge counsel and appoint substitute counsel. The rule does not
provide for the circumstance in which the panel makes no determination
as to whether there are issues of arguable merit or not because the brief
is inadequate.

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