                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-14-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3225




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                                                    NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT

                         ___________

                         No. 04-3225
                         ___________


               UNITED STATES OF AMERICA

                               vs.

                      OMAR BENNETT,

                           Appellant

                         ___________


         On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                  (D.C. Criminal No. 02-172-24)
         District Judge: The Honorable Stewart Dalzell

                         ___________

           Submitted Under Third Circuit LAR 34.1(a)
                      November 7, 2006



BEFORE: SLOVITER, CHAGARES, and NYGAARD, Circuit Judges.



                    (Filed: March 14, 2007)

                         ___________
                                OPINION OF THE COURT
                                     ___________


NYGAARD, Circuit Judge.

                                              I.

       Omar Bennett was convicted of possession of 50 grams of crack cocaine and five

grams of powder cocaine. The District Court sentenced him to 240 months in prison and

10 years’ supervised release, and imposed a $1,500 fine and a $100 special assessment.

       Bennett’s appointed counsel, Joshua Briskin, filed a notice of appeal and a motion

to withdraw as counsel. After we denied his motion, he filed an Anders brief. On a single

page, Briskin gave a perfunctory rendition of the facts, and stated, “[a]fter a careful

review of the Trial transcripts and the record, counsel has concluded that there are no

non-frivolous issues for appeal in the matter. The Appellant should be remanded and

resentenced, consistent with United States v. Booker, 125 S.Ct. 728 (2005).”

       We permitted Bennett to submit briefs pro se. He contended, inter alia, that the

District Court’s sentence was erroneously based upon a prior conviction which was not

final at the time of his federal offense. Specifically, he argued a prior conviction that

remains subject to direct review cannot be used to support a recidivist enhancement under

21 U.S.C. §841(b)(1)(A). We agree. Bennett’s conviction remained subject to direct

review by the United States Supreme Court, and was therefore not “final” for sentencing

purposes. See Kapral v. United States, 166 F.3d 565, 570 (3d Cir. 1999). In its response,



                                              2
the Government acknowledges the District Court’s “plain error,” and concedes Bennett is

entitled to re-sentencing without application of a mandatory penalty.

       The Due Process and Equal Protection clauses ensure an indigent criminal

defendant the right to “adequate and effective appellate review,” Griffin v. Illinois, 351

U.S. 12, 20 (1956), and the right to effective appellate counsel. Douglas v. California,

372 U.S. 353, 355-58 (1963). To help safeguard these rights, we have adopted the

procedure suggested by the Supreme Court in Anders v. California, 386 U.S. 738 (1967).

3d Cir. R. 109.2(a).

       When reviewing an Anders brief, we determine: 1) whether counsel adequately

fulfilled the rule’s requirements; and 2) whether an independent review of the record

presents any non-frivolous issues. United States v. Youla, 241 F.3d 296, 300 (3d Cir.

2001); United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000). The first inquiry is

dispositive. Youla, 241 F.3d at 300 (citing Marvin, 211 F.3d at 781). Except in cases in

which claims are frivolous, we will reject briefs where we are not satisfied counsel has

adequately attempted to uncover his client’s best arguments. Youla, 241 F.3d at 300 (3d

Cir. 2001) (internal citations omitted).

       Appointed counsel is required to support the client’s appeal to the best of his or

her ability. Anders, 386 U.S. at 744. In all cases, appointed counsel must conscientiously

evaluate the client’s case and discern non-frivolous arguments. Smith v. Robbins, 528

U.S. 259, 278 n.10 (2000) (citing Ellis v. United States, 356 U.S. 674, 675 (1958) and



                                             3
Anders, 386 U.S. at 741-43). When submitting an Anders brief, counsel must: 1) satisfy

the court that he or she has throughly scoured the record in search of appealable issues;

and 2) explain why the issues are frivolous. Marvin, 211 F.3d at 780 (citing United States

v. Tabb, 125 F.3d 583, 585-86 (7th Cir. 1997)).

       Attorney Briskin plainly abandoned his client’s interests, abdicated his

professional responsibilities and ignored his duties to the Court. Briskin made no attempt

to address any of the issues raised by his client, and otherwise offered no explanation for

his conclusions. His submission was essentially a “no-merit” letter – precisely the sort of

document the Anders Court condemned. We find it entirely unacceptable.

       We will grant Briskin’s motion to withdraw, and urge Briskin not to seek

remuneration for his services on this appeal. Guided, however, by Mr. Bennett’s pro se

briefs, we have reviewed the record and conclude his claims challenging his conviction

lack merit. Accordingly, we will affirm the judgment of conviction. However, as noted

above, Bennett’s sentence was erroneously based on a prior conviction which had not yet

become final. We note also that Bennett was sentenced before the Supreme Court’s

decision in United States v. Booker, 543 U.S. 220 (2005). We will vacate Bennett’s

sentence and remand the cause for appointment of counsel and re-sentencing by the

District Court considering the Court’s decision in Booker and without application of the

recidivist penalty established under 21 U.S.C. §841(b)(1)(A).




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