                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-20-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3163




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NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     Case No: 04-3163

                            UNITED STATES OF AMERICA

                                              v.

                                   STEVEN HOWARD,
                                         Appellant


                     On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                               District Court No. 03-cr-00499
                     District Judge: The Honorable Petrese B. Tucker


                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  December 16, 2005

         Before: SLOVITER, SMITH, and VAN ANTWERPEN, Circuit Judges

                                (Filed: December 20, 2005)


                                OPINION OF THE COURT


SMITH, Circuit Judge.

       Steven Howard was indicted and charged with two counts of armed bank robbery

in violation of 18 U.S.C. § 2113(d) and two counts of using a firearm during a crime of

violence in violation of 18 U.S.C. § 924(c). Howard agreed to plead guilty to all four

counts. The written plea agreement stated that he “voluntarily and expressly waive[d] all

rights to appeal” his conviction, his sentence, or any other matter relating to his
prosecution unless the government appealed his sentence, his sentence exceeded the

statutory maximum, or the sentencing judge erred by departing upward from the United

States Sentencing Guidelines. During the plea colloquy, the District Judge asked if

Howard had agreed to “waive or give up your right to appeal.” He answered that he did.

In response to the District Judge’s inquiry as to whether he understood that aspect of the

plea agreement, Howard replied in the affirmative. Howard also affirmed that he

understood the limited exceptions to his waiver. Thereafter, the District Court sentenced

Howard to 420 months of imprisonment.1

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

pursuant to Anders v. California, 386 U.S. 738 (1967).2 In Anders, the Supreme Court

held that the “constitutional requirement of substantial equality and fair process”

necessitates that appellant’s counsel vigorously act as an advocate for the defendant. 386

U.S. at 744. Thus, counsel’s

       role as advocate requires that he support his client’s appeal to the best of his
       ability. Of course, if counsel finds his case to be wholly frivolous, after a
       conscientious examination of it, he should so advise the court and request
       permission to withdraw. That request, must, however, be accompanied by a
       brief referring to anything in the record that might arguably support the
       appeal.

Id. In United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001), we reiterated that an


  1
    The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise appellate
jurisdiction under 28 U.S.C. §1291 and 18 U.S.C. § 3742(a).
  2
   Although Howard had the opportunity to file an informal brief pursuant to Third
Circuit L.A.R. 109.2(a), he did not take advantage of that opportunity.
                                              2
Anders brief must demonstrate that counsel has “thoroughly examined the record in

search of appealable issues,” and it must “explain why the issues are frivolous.”

       Here, counsel correctly asserted in his Anders brief that because Howard pleaded

guilty, he is limited to asserting a constitutional right not to be haled into court on a

charge, challenging the validity of the guilty plea, and attacking the legality of his

sentence. See United States v. Broce, 488 U.S. 563, 574-76 (1989); 18 U.S.C. § 3742(a);

Tollett v. Henderson, 411 U.S. 258, 267 (1973). Counsel explained, with citations to the

record, why none of these issues had merit.

       In response to the notice of appeal, the government moved to enforce Howard’s

appellate waiver by dismissing the appeal. We declared in United States v. Khattak, 273

F.3d 557, 562 (3d Cir. 2001), that “waivers of appeals, if entered into knowingly and

voluntarily, are valid.” We recognized, however, that some waivers may be invalidated if

there is an error amounting to a miscarriage of justice. In determining whether an error

warrants invalidating an appellate waiver, we observed that consideration should be given

to the alleged error, its gravity, its character, the impact of the error on the parties, and the

extent to which the defendant acquiesced in the result. Id. at 563 (quoting United States

v. Teeter, 257 F.3d 14, 25 (1st Cir. 2001)). In addition, we emphasized the importance of

the district court’s inquiry into whether the defendant understood the waiver and how it

affected him. Khattak, 273 F.3d at 563.

       As we noted above, the sentencing judge fulfilled her responsibility of verifying

that Howard understood the appellate waiver and the limits it imposed. Our review of

                                               3
Howard’s plea colloquy failed to reveal any indicia that either his plea or his waiver was

involuntary or unknowing. In light of counsel’s Anders brief, which explains at length

why there is no basis for appeal, we find no reason to set aside Howard’s appellate

waiver. Accordingly, we will grant the government’s motion to enforce the appellate

waiver and to dismiss this appeal. We will also grant counsel’s motion to withdraw. We

further certify that the issues presented in this appeal lack legal merit and thus do not

require the filing of a petition for writ of certiorari with the Supreme Court. 3d Cir.

L.A.R 109.2(b).




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