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


3-14-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3041




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"USA v. Leach" (2006). 2006 Decisions. Paper 1442.
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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-3041


                           UNITED STATES OF AMERICA

                                           v.

                                FREDERICK LEACH,
                                      a/k/a
                                       FL,
                                      a/k/a
                                   LITTLE RED

                                FREDERICK LEACH,

                                                    Appellant



  ON APPEAL FROM FINAL JUDGMENT OF THE UNITED STATES DISTRICT
        COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                        (D.C. No. 02-172-14)

                     District Judge: The Honorable Stewart Dalzell


                          Submitted pursuant to LAR 34.1(a)
                                  on March 2, 2006.

       Before: SLOVITER and FUENTES, Circuit Judges, and RESTANI, Judge*

                               (Filed: March 14, 2006)


   *
    Honorable Jane A. Restani, Chief Judge of the United States Court of International
Trade, sitting by designation.
                                 ____________________

                               OPINION OF THE COURT
                                _____________________

Fuentes, Circuit Judge.

       Counsel for Frederick Leach has filed a motion to withdraw as appellate counsel

in this case and has submitted a brief in support thereof pursuant to Anders v. California,

386 U.S. 738 (1967). Counsel argues that there are no non-frivolous issues that can be

raised on appeal by Leach. Leach was provided with a copy of the motion and the brief

and was given notice that he could file a pro se brief, which he has not done.

       On the morning he was to begin his trial in a thirty-seven-defendant drug

conspiracy prosecution, Leach pleaded guilty to conspiracy to distribute more than five

kilograms of cocaine and more than fifty grams of cocaine base in violation of 21 U.S.C.

§ 846, possession with the intent to distribute cocaine base in violation of 21 U.S.C. §§

841(a)(1) and (b)(1)(c), and possession with the intent to deliver cocaine base within 1000

feet of a school in violation of 21 U.S.C. § 860. Leach did not enter into any stipulations

regarding the amount of the drugs. The probation department and the Government

calculated the base offense level for the offense as forty. (U.S.S.G. §§ 2D1.1, 2D1.2.)

Two levels were added for carrying a firearm during the conspiracy, and two levels

subtracted for acceptance of responsibility. (U.S.S.G. §§ 2D1.1(b)(1), 3E1.1(a).) Leach’s

criminal history category was four. The United States Sentencing Guidelines (the

“Sentencing Guidelines”) ranges for Leach were therefore 360 months to life


                                             2
imprisonment.

       At sentencing, however, the District Court applied the Supreme Court decision in

Blakely v. Washington, 542 U.S. 296 (2004) to the Sentencing Guidelines. (Appendix to

Brief of Appellant (“App.”) at 10-18.) Accordingly, the District Court imposed a

sentence that included no enhancements to which Leach had not, by admission, agreed.

The sentenced resulted in an offense level of thirty-four, rather than forty, and a criminal

history category of three. (Id. at 17-18.) As a result, Leach’s sentencing range was 188-

235 months. The District Court concluded that, under the Sentencing Guidelines, it

would sentence Leach to 188 months because of his remorse and his minor role in the

conspiracy. (Id. at 18.) However, based on the Supreme Court’s holding in Blakely, the

District Court concluded that the Supreme Court would soon find that the Sentencing

Guidelines to be, at best, advisory rather than mandatory. (Id. at 14-17.) The District

Court therefore formulated a “non-Guidelines alternative sentence” of 188 months, again

based on Leach’s remorse and his minor role in the conspiracy. (Id. at 18.)

       To the extent that Leach’s appeal is based on defects in his guilty plea, we find no

non-frivolous issues exist. Leach made his guilty plea knowingly and voluntarily. The

District Court carefully explained to Leach his rights and the ramifications of entering a

guilty plea. (Id. at 39-43.) The District Court ensured that Leach understood the charges

against him and the penalties that he might face for pleading guilty to them, and

determined that Leach had discussed these issues with his counsel and was satisfied with

the assistance he received from his counsel. (Id.) Accordingly, the record demonstrates

                                              3
that Leach made a knowing, intelligent, and voluntary plea. United States v. Tannis, 942

F.2d 196, 197 (3d Cir. 1991).

       Although Leach has not requested resentencing, to the extent that Leach’s appeal

is based on his sentence in light of the Supreme Court’s subsequent decision in United

States v. Booker, 543 U.S. 220 (2005), we find no non-frivolous issues. We have held

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

identical to the sentence imposed under the Guidelines, any error that may attach to a

defendant's sentence under Booker is harmless.” United States v. Hill, 411 F.3d 425, 426

(3d Cir. 2005). Because the District Court here clearly considered the possibility that the

Sentencing Guidelines would be held unconstitutional and explicitly provided that, under

such a holding, it would provide an identical sentence, there is no need to remand for

resentencing.

       Because we find no non-frivolous issues, the District Court’s judgment is affirmed.

Counsel’s motion to withdraw pursuant to Anders is hereby granted.




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