                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 08-1740


                           UNITED STATES OF AMERICA

                                            v.

                                DENNIS D. CARSON,

                                                 Appellant


                     Appeal from the United States District Court
                               for the District of Delaware
                    (D.C. Criminal Action No. 1-06-cr-00116-001)
                      District Judge: Honorable Gregory M. Sleet


                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 9, 2010


                Before: AMBRO, SMITH and MICHEL,* Circuit Judges

                                 (Filed: April 28, 2010 )


                                       OPINION


AMBRO, Circuit Judge

      Dennis Carson pled guilty to transmitting a threat to injure the person of another


      *
       Honorable Paul R. Michel, Chief Judge, United States Court of Appeals for the
Federal Circuit, sitting by designation.
with the intent to extort. He was sentenced to 120 months’ imprisonment and timely

appealed. 1 Carson’s attorney has moved to withdraw as counsel under Anders v.

California, 386 U.S. 738 (1967), asserting that all potential grounds for appeal are

frivolous. We grant the motion and affirm Carson’s sentence.

                                              I.

       Because we write solely for the parties, we recite only those facts necessary to our

decision. In October 2006, Carson sent a letter to a Massachusetts law firm representing

Springfield College, the defendant in a civil suit filed by Carson (who was dismissed

from the College in March 2005). In this letter, Carson described his firearms training

and access to weapons, discussed the shootings at Columbine High School, and suggested

that similar events might occur if Springfield College refused to pay him $75,000,

reinstate him as a student, and grant him free tuition.

       A federal grand jury returned a two-count indictment charging Carson with (1)

transmitting in interstate commerce a threat to injure the person of another with the intent

to extort money and other things of value (in violation of 18 § U.S.C. 875(b)); and (2)

transmitting in interstate commerce a communication containing a threat to injure another

person (in violation of 18 U.S.C. § 875(c)). In July 2007, Carson pled guilty to Count

One pursuant to a plea agreement.

       At sentencing, the District Court adopted the conclusions in the Presentence



       1
        The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

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Investigation Report that Carson’s offense level was 21 and his criminal history category

was IV, resulting in a Guideline range of 57 to 71 months’ imprisonment. Carson

requested a downward variance from this range based on his history of mental illness.

The Government requested an upward departure in Carson’s criminal history category

pursuant to U.S.S.G. § 4A1.3(a), arguing that the seriousness of Carson’s criminal record

was significantly understated by his criminal history category of IV.

        The District Court denied Carson’s request for a downward variance, and declined

to depart upwardly under § 4A1.3(a). Instead, the Court imposed an upward variance of

49 months, finding that Carson’s criminal history category (and the resulting Guideline

range) “grossly under-represent the danger . . . [that Carson] pose[s] to society.” (App. at

137.)

        Carson timely appealed. As noted, his attorney moved to withdraw and filed a

corresponding Anders brief. Carson was notified of his right to file a pro se brief, but he

has failed to do so.

                                              II.

        Our rules provide that “[w]here, upon review of the district court record, trial

counsel is persuaded that the appeal presents no issue of even arguable merit, counsel

may file a motion to withdraw and supporting brief pursuant to Anders.” 3d Cir. L.A.R.

109.2(a). If we concur with trial counsel’s assessment, we “will grant [the] Anders

motion, and dispose of the appeal without appointing new counsel.” Id. Accordingly, our

“inquiry is. . . twofold: (1) whether counsel adequately fulfilled the rule’s requirements;

                                              3
and (2) whether an independent review of the record presents any nonfrivolous issues.”

United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).

       In her Anders brief, Carson’s attorney identifies three potential grounds for appeal:

(1) whether the Government breached the plea agreement when it requested an upward

departure pursuant to U.S.S.G. § 4A1.3(a); (2) whether the District Court abused its

discretion in varying upward from the Guidelines range (and relatedly, whether the

resulting sentence was substantively reasonable); and (3) whether counsel was ineffective

for failing to seek a downward departure pursuant to U.S.S.G. § 5K2.13 based on

Carson’s diminished mental capacity.

       Our review of the record confirms counsel’s assessment that there are no

nonfrivolous issues for appeal. As for the first issue, we agree that the Government’s

request for an upward departure did not violate the plea agreement. The plea agreement

did not contain any express promise by the Government not to seek an upward departure

in Carson’s criminal history category; rather, it merely advised Carson that, based on the

facts known “prior to the preparation of the pre-sentence report,” he “should expect” a

Government recommendation “consistent with” the Guidelines range. (App. at 51.)

Moreover, the plea agreement specifically stated that the District Court was not bound to

sentence Carson within the Guidelines range. Thus, the Government’s request at

sentencing for an upward departure in the offense level calculation was not inconsistent

with the plea agreement or what Carson should have “reasonably understood” in entering

into that agreement. United States v. Nolan-Cooper, 155 F.3d 221, 236 (3d Cir. 1998).

                                             4
       Second, we agree that the District Court did not abuse its discretion in imposing an

upward variance when sentencing Carson to 120 months’ imprisonment. The Court gave

a lengthy explanation for its sentence, and found that Carson’s “deplorable” criminal

record—which includes numerous convictions for offenses involving firearms and

violence, and “spans a little over 30 years”—“demonstrates that the threat of arrest or

confinement seemingly does not deter” Carson. (App. at 135–37.) The Court also

considered Carson’s mental health status—which the Court acknowledged was “certainly

a mitigating factor,” App. at 138—but noted that Carson had “committ[ed] the same type

of dangerous offenses [his] entire life, even during times when [he was] ordered to take

medications” for his mental illness. (App. at 138.) In this context, we agree that the

Court gave “rational and meaningful” consideration to the relevant 18 U.S.C. § 3553(a)

factors in imposing its sentence. United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007)

(en banc). We also agree that Carson’s sentence was substantively reasonable, as it “falls

within the broad range of possible sentences that can be considered reasonable in light of

the § 3553(a) factors.” United States v. Wise, 515 F.3d 207, 218 (3d Cir. 2008).

       Finally, we take no position on Carson’s potential ineffective assistance of counsel

claim, as such a claim typically is not properly presented at the direct appeal stage, and in

any event the record here is insufficient to allow a determination of this issue. See United

States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003).

       Counsel adequately fulfilled the requirements of Anders. Because our independent

review of the record fails to reveal any nonfrivolous ground for appeal, we grant

                                              5
counsel’s motion to withdraw and affirm Carson’s sentence.2




       2
         Carson is hereby advised that, under the Criminal Justice Act, his counsel is not
obliged to file a petition for rehearing in this Court or a petition for a writ of certiorari in
the United States Supreme Court. See 3d Cir. L.A.R. 35.4; 109.2(b). If Carson wishes to
pursue these avenues, he must do so pro se. Carson should note that an original and
fourteen copies of a petition for rehearing en banc must be filed within 14 days of the
entry of judgment, or, if that time has passed, he may promptly file a motion to enlarge
the time for such filing. Counsel promptly shall send a copy of this opinion and judgment
to Appellant.

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