                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-8-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3564




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 02-3564


                           UNITED STATES OF AMERICA

                                            v.

                                   DONALD EVANS,
                                         Appellant


                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                          (D.C. Criminal No. 02-cr-00024-01)
                      District Judge: Honorable Berle M. Schiller


                       Submitted Under Third Circuit LAR 34.1(a)
                                   October 2, 2003

                Before: RENDELL, WEIS and GARTH, Circuit Judges.

                                 (Filed October 6, 2003)


                               OPINION OF THE COURT


RENDELL, Circuit Judge.

      On May 29, 2002, Appellant Donald Evans pled guilty to three counts of dealing

in counterfeit United States currency, in violation of 18 U.S.C. § 473. The plea

agreement stipulated that for sentencing purposes Evans had an offense level of 16 and a
criminal history category of IV, resulting in a sentencing range of 33-41 months. At the

sentencing hearing, the government filed a motion for a downward departure under

U.S.S.G. § 5K1.1 because Evans had volunteered information that led to the arrest of a

co-defendant. The District Court granted the government’s motion and imposed a

sentence of 30 months imprisonment, three years supervised release, and a special

assessment of $300. Evans now appeals. The District Court had jurisdiction under 18

U.S.C. § 3231, and we exercise jurisdiction under 28 U.S.C. § 1291. We will affirm.

       Evans’ counsel has filed a brief in accordance with Anders v. California, 386 U.S.

738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), expressing his belief that there are no non-

frivolous issues raised in this appeal and requesting to withdraw as counsel. As required

by Anders, Evans’ counsel has identified one issue that might arguably support an appeal.

Although Evans was advised of his right to file a pro se brief, he has not done so.

       In reviewing an Anders brief, we ask (1) whether counsel adequately examined the

record for appealable issues and explained why such issues are frivolous, 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). Evans’ counsel has met the first requirement by

identifying one possible issue that might arguably support an appeal: whether the District

Court abused its discretion when it departed from the sentencing guideline range of 33 to

41 months imprisonment to a sentence of 30 months imprisonment based on the

government’s motion for a downward departure. In his brief, counsel suggests that any



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appeal would be based solely on Appellant’s dissatisfaction with the extent of the

departure, and concludes that this issue is not subject to review. Counsel further asserts

that there are no other non-frivolous issues presented in the record.

       An independent review of the record confirms that Evans’ appeal is entirely

frivolous. In his brief, counsel discusses the downward departure for substantial

assistance that the District Court imposed, and correctly explains that the extent of such a

departure lies wholly within the District Court’s discretion. See United States v. Torres,

251 F.3d 138, 145 (3d Cir. 2001). Indeed, we lack jurisdiction to review such a

departure. Id.

       As required by Anders, Evans’ counsel conducted a conscientious review of the

record and properly concluded that there are no non-frivolous issues on which to base an

appeal. Satisfied that all of the Anders requirements have been met, we will GRANT

counsel’s motion to withdraw and AFFIRM the judgment of the District Court.




                                                  /s/ Marjorie O. Rendell
                                                  Circuit Judge




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