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


9-21-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3665




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NOT PRECEDENTIAL


                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                            Case No: 04-3665

                    UNITED STATES OF AMERICA

                                    v.


                           YUSUF HOWARD,

                                     Appellant


              On Appeal from the United States District Court
                  for the Eastern District of Pennsylvania
                       District Court No. 04-cr-00047
               District Judge: The Honorable John R. Padova


            Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                          September 19, 2007

          Before: SLOVITER, SMITH, and GARTH, Circuit Judges

                       (Filed : September 21, 2007)




                                OPINION
SMITH, Circuit Judge.

       After the Defendant’s unsuccessful motion to suppress certain physical evidence, a

jury on April 13, 2004, found Yusuf Howard guilty of (1) possession with the intent to

distribute cocaine base, a controlled substance in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(C); (2) using and carrying a firearm during and in relation to a drug trafficking

offense in violation of 18 U.S.C. § 924(c); and (3) possession of a firearm by a convicted

felon in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1). At sentencing on September 9,

2004, the District Court determined that Howard was an armed career criminal under

United States Sentencing Guideline (“U.S.S.G.”) § 4B1.4, resulting in an enhancement of

his offense level to 34, his criminal history category to VI, and a guideline range of 262 to

327 months imprisonment. The District Court sentenced Howard to 262 months on each

of Counts 1 and 3, to run concurrently, and 60 months on Count 2, to run consecutively,

followed by a six year term of supervised release.

       After filing a timely notice of appeal1, Howard’s counsel moved to withdraw

pursuant to Anders v. California, 386 U.S. 738 (1967), stating that no non-frivolous issues

exist for appeal. Howard filed an informal brief pursuant to Third Circuit Local

Appellate Rule 109.2(a).

       In Anders, the Supreme Court recognized that the “constitutional requirement of



       1
        The District Court exercised jurisdiction under 18 U.S.C. § 3231. Appellate
jurisdiction exists under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United States v.
Cooper, 437 F.3d 324, 327-28 n.4 (3d Cir. 2006).

                                             2
substantial equality and fair process” necessitates that appellate counsel make a

conscientious examination for “anything in the record that might arguably support the

appeal.” Id. at 744. In United States v. Youla, we declared that the “duties of counsel

when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly

examined the record in search of appealable issues, and (2) to explain why the issues are

frivolous.” 241 F.3d 296, 300 (3d Cir. 2001). If review fails to reveal any non-frivolous

issues, the court “may grant counsel’s request to withdraw and dismiss the appeal.”

Anders, 386 U.S. at 744.

       Counsel’s Anders brief, which contains one half of one page of argument, is

woefully deficient.2 It fails to reveal a “conscientious examination” of the record, and

fails to address a non-frivolous issue regarding sentencing that Howard identifies in his

informal brief. However, our review of Howard’s informal brief, the Government’s brief,

and the record before us, which includes transcripts of the motion to suppress, the trial,

and the sentencing hearing, fails to reveal any non-frivolous issue which would warrant

setting aside Howard’s conviction. Arguments made by counsel in the Anders brief and

by Howard in the informal brief are addressed below.

       Counsel argues in the Anders brief that Howard’s appeal is frivolous. Counsel

claims that the District Court did not commit reversible error in denying the Motion to

Suppress physical evidence, because (1) the District Court’s finding of witness credibility


       2
       Moreover counsel did not appear to recognize his obligations as set out in L.A.R.
109.2 and Austin v. United States, 513 U.S. 5 (1994).

                                              3
cannot be challenged, (2) the officer had cause to stop and do a protective pat down of

Howard, and (3) the drugs found on Howard were found incident to arrest. With respect

to a suppression order, we review the District Court’s findings of fact for clear error, and

exercise plenary review over its legal determinations. United States v. Ritter, 416 F.3d

256, 261 (3d Cir. 2005). Accordingly, we find no error in the District Court’s handling of

Howard’s Motion to Suppress physical evidence.

       Howard asserts four claims, the first three of which are frivolous and the fourth of

which pertains to resentencing and is non-frivolous. First, he argues that the stop was not

valid because a citation was not issued, but the record shows that a citation was issued

that evening.3 Second, he claims there was a Miranda violation. This claim lacks merit

as Howard was never questioned while in custody. See Miranda v. Arizona, 384 U.S.

436, 532 (1966) (setting out custodial questioning as the requirement for when Miranda

rights are triggered). Third, he submits that the armed career criminal enhancement of his

sentence was not valid because the drugs seized did not weigh enough. This argument

also lacks merit because the armed career criminal enhancement is based on Howard’s §

924(e) conviction. The extent of the enhancement depends on whether possession of the

firearm was in connection with a controlled substance offense. The weight of the drugs


       3
        In connection with his first claim, Howard asserts that counsel was ineffective
when he failed to raise and preserve at the suppression hearing and at the sentencing
hearing the purported fact that Howard was not issued a citation. Such assertions are not
ordinarily reviewable on direct appeal. See United States v. Thornton, 327 F.3d 268, 271
(3d Cir. 2003) (expressing, “[i]t has long been the practice of this court to defer the issue
of ineffectiveness of trial counsel to a collateral attack”).

                                              4
Howard possessed is irrelevant.

       Fourth, Howard claims that the case should be remanded to the District Court for

resentencing in light of United States v. Booker, 543 U.S. 220 (2005). The Government

agrees with Howard on this resentencing claim, as do we. Having determined that the

sentencing issues Howard raises are best determined by the District Court in the first

instance, we will vacate the sentence and remand for resentencing in accordance with

Booker.

       We will grant counsel’s motion to withdraw as the Anders brief is inadequate. We

will direct the Clerk to appoint new counsel to represent Howard in any further

proceedings.

       An appropriate order will follow.




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