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


4-18-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2406




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"USA v. Garner" (2007). 2007 Decisions. Paper 1261.
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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 06-2406
                                     ____________

                           UNITED STATES OF AMERICA

                                             v.

                                 MARCUS GARNER,

                                              Appellant.
                                     ____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                   (No. 05-cr-0205)
                      District Judge: Hon. William W. Caldwell

                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 29, 2007

            Before: RENDELL, BARRY, and CHAGARES, Circuit Judges.

                                     ____________

                                 (Filed: April 18, 2007 )

                             OPINION OF THE COURT

CHAGARES, Circuit Judge.

      Counsel for Marcus Garner petitions this Court for permission to withdraw from

representation of Garner pursuant to Anders v. California, 386 U.S. 738 (1967). For the
reasons that follow, we will grant the motion and affirm Garner’s conviction and sentence.

       On October 12, 2005, a grand jury returned a two-count indictment charging

Garner with interstate travel in aid of racketeering and possession of crack cocaine with

intent to distribute in violation of 18 U.S.C. § 1952 and 21 U.S.C. § 841(a)(1),

respectively. Pursuant to a plea agreement, Garner pled guilty to the racketeering charge

on December 12, 2005. In exchange for Garner’s plea of guilty, the Government agreed

to dismiss the drug possession charge, and to recommend a two-level reduction in

Garner’s offense level, which it did.

       Thereafter, the District Court commissioned the preparation of a Presentence

Report (PSR). The PSR determined that Garner’s total offense level was 26, and his

criminal history was category IV, which corresponded to a Guideline range of 92-115

months. Because the statutory maximum Garner could receive was 60 months, his actual

exposure was substantially less than his Guideline range would indicate. Garner made no

objections to the PSR.

       On April 13, 2006, the District Court sentenced Garner to 60 months

imprisonment. This appeal ensued.1

       The Anders brief submitted to this Court demonstrates that Garner’s attorney has

“thoroughly examined the record in search of appealable issues,” and has explained why

any issues arguably supporting the appeal are frivolous. United States v. Youla, 241 F.3d


       1
        Because Garner has not filed a pro se brief, we do not know what error he assigns
to the District Court.

                                             2
296, 300 (3d Cir. 2001). Moreover, an independent review of “those portions of the

record identified by [the] Anders brief” reveals no non-frivolous issues Garner might

profitably raise on appeal. Id. at 301. Accordingly, we will grant the Anders motion and

affirm Garner’s conviction and sentence without appointing new counsel. See 3d Cir.

L.A.R. 109.2.




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