                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-17-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1686




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NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                    Case No: 07-1686

                            UNITED STATES OF AMERICA

                                                   v.

                            DYSHAUN MOSS, a/k/a Sharkey,

                                                  Appellant


                    On Appeal from the United States District Court
                               for the District of New Jersey
                               District Court No. 05-CR-557
                   District Judge: The Honorable Garrett E. Brown, Jr.


                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  September 12, 2008

                   Before: McKEE, SMITH and WEIS, Circuit Judges

                                (Filed: September 17, 2008)


                                         OPINION


SMITH, Circuit Judge.

       Dyshaun Moss, pursuant to a plea agreement containing a waiver of his right to

file a direct appeal, pleaded guilty to knowingly and intentionally conspiring to distribute

and to possess with the intent to distribute 100 grams of heroin in violation of 21 U.S.C.

                                              1
§§ 841(a)(1) and 841(b)(1)(B). The presentence report calculated Moss’s offense level as

31 and his criminal history category as VI, yielding a sentencing guidelines range of 188

to 235 months. At sentencing, the United States District Court for the District of New

Jersey noted that several factors militated in favor of “a serious sentence.” Nonetheless,

because Moss had accepted responsibility for his conduct, cooperated during his

presentence report, and was candid with the court, the District Court granted a downward

variance of one offense level. This variance resulted in a new sentencing guidelines

range of 168 to 210 months. The Court sentenced Moss to 168 months.

       Moss, proceeding pro se, filed a timely notice of appeal.1 Defense counsel

concluded that there were no non-frivolous issues to appeal and filed a motion to

withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). 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. Id.

at 744. In United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001), we reiterated that an

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.” Id.

(citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000)).

       Defense counsel has set forth, with citations to the record, the facts and procedural



       1
        The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. We have
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). United States v. Cooper,
437 F.3d 324, 327 (3d Cir. 2006).

                                               2
history of the case. Counsel explained that he considered whether Moss could challenge

the reasonableness of the sentence imposed, but concluded that any argument in that

regard was frivolous in light of the downward variance which was granted and the below

guideline sentence that was imposed. We agree with counsel that it would be frivolous to

challenge the reasonableness of the 168 month sentence, particularly in light of the

appellate waiver contained in the plea agreement.

       We conclude that defense counsel has fulfilled his obligation of thoroughly

examining the record in search of appealable issues and explained why any such issue

lacks merit. Because our own independent review fails to reveal any nonfrivolous issues,

we will affirm the judgment of the District Court. 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).
