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


7-1-2008

USA v. Alvin Simmons, Jr.
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2129




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                     No. 06-2129
                                     __________

                           UNITED STATES OF AMERICA

                                            v.

                              ALVIN R. SIMMONS, Jr.,

                                           Appellant
                                      __________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                   (No. 04-cr-00278)
                      District Judge: Hon. Donetta W. Ambrose
                                      __________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 10, 2008

          Before: AMBRO, CHAGARES, and GREENBERG, Circuit Judges.
                                 _________
                            (Filed: July 1, 2008)
                                 _________

                              OPINION OF THE COURT
                                    __________

CHAGARES, Circuit Judge.

      Alvin Simmons filed a pro se appeal from his sentence for bank fraud, and his

counsel has petitioned for permission to withdraw from representation under Anders v.
California, 386 U.S. 738 (1967). For the reasons that follow, we will affirm Simmons’

sentence and will grant the Anders motion.

                                             I.

       In 2003, Simmons obtained a fake identification document in Ohio and used it to

open a bank account in Pennsylvania. He then deposited a check into the account that had

been drawn off of another, closed, bank account, and wrote checks and made withdrawals

from the fraudulently-opened account. On October 26, 2004, a grand jury charged

Simmons with two counts of bank fraud, in violation of 18 U.S.C. § 1344, and one count

of fraud in connection with identification documents, in violation of 18 U.S.C. §

1028(a)(7). On November 25, 2005, Simmons pled guilty to one count of bank fraud

pursuant to a written plea agreement that included an appellate waiver. A pre-sentence

report determined Simmons’ Sentencing Guidelines range to be 24-30 months. On

February 27, 2006, the District Court sentenced Simmons to 24 months, the bottom of

that range. Simmons subsequently filed a one-page, pro se appeal, and his counsel has

petitioned to withdraw and filed a supporting brief.

                                             II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       Evaluation of an Anders brief requires a twofold inquiry: (1) whether counsel has

thoroughly examined the record for appealable issues and has explained why any such



                                             2
issues are frivolous; and (2) whether an independent review of the record presents any

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

Where the Anders brief appears adequate on its face, our review is limited to the portions

of the record identified in the brief, along with any issues raised by an appellant in a pro

se brief. See id. at 301. We conclude that the brief in this case is adequate – indeed, it is

exhaustive – and thus it will guide our independent review of the record.

       As his counsel acknowledges, Simmons is precluded from bringing an appeal due

to the waiver contained in his plea agreement. “Waivers of appeals, if entered into

knowingly and voluntarily, are valid, unless they work a miscarriage of justice.” United

States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001). Under the terms of Simmons’ plea

agreement, Simmons waived, inter alia, his right to appeal under 18 U.S.C. § 3742 or on

any other grounds, subject to three exceptions: (1) Simmons could appeal in the event of

a Governmental appeal; (2) Simmons could appeal if his sentence exceeded the statutory

limits for his crime; or (3) Simmons could appeal if his sentence “unreasonably exceeds

the guideline range determined by the [District] Court under the Sentencing Guidelines.”

(JA 17 (Plea Agmt. ¶ 6).)

       A review of the Change of Plea hearing transcript demonstrates that the waiver

was valid, knowing, and voluntary. The District Court had the appellate waiver

provisions of the plea agreement read into the record during its Federal Rule of Criminal

Procedure 11 colloquy and again reminded Simmons of the waiver provisions at



                                              3
sentencing. Simmons does not indicate any reason why the waiver of appeal should not

be enforced, and neither he nor his counsel identify any potential error amounting to a

miscarriage of justice. Our independent review of the record yields no non-frivolous

arguments that could possibly support an appeal in light of Simmons’ waiver.

                                           III.

       Accordingly, we will affirm the District Court’s judgment of conviction and

sentence and, in a separate order, will grant counsel’s motion to withdraw.




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