                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-10-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1319




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                                                              NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                   Case No: 03-1319

                           UNITED STATES OF AMERICA

                                             v.

                                   JOHN WILSON,

                                          Appellant

                                ___________________

                    On Appeal from the United States District Court
                                for the District of Delaware
                     District Judge: The Honorable Sue L. Robinson
                                  (D.C. No. 02-cr-00027)
                              _________________________
                    Submitted pursuant to Third Circuit LAR 34.1(a)
                                   on November 6, 2003

              Before: McKEE, SMITH and GREENBERG, Circuit Judges

                              (Filed: November 10, 2003)

                                ____________________

                              OPINION OF THE COURT
                               _____________________

SMITH, Circuit Judge.

      John Wilson pleaded guilty to credit card fraud and possession of false federal

identification on July 25, 2002. He was sentenced to thirty three months imprisonment

and ordered to pay restitution in the amount of $41,286.84. Thereafter, Wilson requested
that the District Court dismiss his court-appointed counsel and appoint new counsel to

handle his appeal. The District Court granted Wilson’s request and new counsel was

appointed to prosecute Wilson’s appeal.1 After meeting with Wilson and reviewing the

record and caselaw, Wilson’s counsel moved to withdraw pursuant to Anders v.

California, 386 U.S. 738 (1967).

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

substantial equality and fair process” means that appellate counsel must 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. As we explained in United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001), the

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.”

Accordingly, our inquiry is twofold: (1) whether counsel adequately fulfilled the

requirements of Anders; and (2) “whether an independent review of the record presents

any nonfrivolous issues.” Id. (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir.

2000)); see also Anders, 386 U.S. at 744 (explaining that the court must proceed, “after a



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

                                              2
full examination of all the proceedings, to decide whether the case is wholly frivolous.”).

If review fails to reveal any nonfrivolous issues, the court “may grant counsel’s request to

withdraw and dismiss the appeal.” Anders, 386 U.S. at 744.

       After considering counsel’s Anders brief, we are satisfied that he thoroughly

examined the record for issues of arguable merit and fulfilled the requirements of Anders.

Counsel correctly observed that Wilson’s plea of guilty limited the issues he is entitled to

challenge on appeal to the District Court’s jurisdiction, the validity of the guilty plea, and

the legality of the sentence. United States v. Broce, 488 U.S. 563, 570-75 (1989). As

Wilson’s counsel noted, there is no basis for disputing the District Court’s jurisdiction.

       With respect to the validity of W ilson’s guilty plea, counsel fully satisfied his

obligation under Anders. He considered not only whether the guilty plea proceeding

complied with the requirements of Boykin v. Alabama, 395 U.S. 238 (1969), but also

addressed each of the requirements of Federal Rule of Criminal Procedure 11.

       Wilson’s sentencing was also conscientiously examined by his appellate counsel.

We agree that the District Court did not err in calculating either the criminal history score

or the amount of the loss. Our review of the record confirms that the District Court had

sufficient evidence to support its computation of Wilson’s criminal history score. The

amount of the loss was based on a stipulation reached between the parties. To be sure,

Wilson expressed some uncertainty at sentencing as to whether he wanted to proceed

based on this stipulation. The District Court offered to continue the proceeding and


                                              3
explained what might be the result of such action inasmuch as the stipulation had been

reached midway through the government’s investigation into the number of victims and

the amount of the loss. Wilson responded that he understood and was “prepared to move

forward with sentencing.” Thus, there was sufficient evidence to support the District

Court’s calculation of the amount of loss and there is no plain error.

       Counsel advised Wilson of his intention to file an Anders brief and that Wilson

was entitled to file a pro se brief.2 In his informal brief, Wilson also challenges the

amount of the loss and asserts that the District Court erred by refusing to depart

downward based on his psychological history, his health status and his traumatic

childhood. As we explained above, there is no merit to Wilson’s argument with respect to

the amount of loss set forth in the stipulation. There is also no merit to his argument that

the Court’s refusal to depart was plain error. The transcript from the sentencing hearing




  2
   Counsel’s notice to Wilson is consistent with Local Appellate Rule 109.2(a) of the
Third Circuit which provides:

       Where, upon review of the district court record, trial counsel is persuaded that the
       appeal presents no issue of even arguable merit, trial counsel may file a motion to
       withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738
       (1967), which shall be served upon the appellant and the United States. The
       United States shall file a brief in response. Appellant may also file a brief in
       response pro se. After all the briefs have been filed, the clerk will refer the case to
       a merits panel. If the panel agrees that the appeal is without merit, it will grant
       trial counsel’s Anders motion, and dispose of the appeal without appointing new
       counsel. If the panel finds arguable merit to the appeal, it will discharge counsel,
       appoint substitute counsel, restore the case to the calendar, and order supplemental
       briefing.

                                              4
confirms that the District Judge knew that she had the authority to depart, but chose to

sentence him to the low end of the guideline range as she found it was appropriate in light

of the offenses he had committed. Accordingly, we lack jurisdiction to review this aspect

of W ilson’s sentence. United States v. McQuilkin, 97 F.3d 723, 729 (3d Cir. 1996).

       In sum, we agree with counsel’s assessment of Wilson’s appeal. Our own

independent review of the record fails to reveal any nonfrivolous issues for appeal.

Accordingly, we will grant counsel’s motion to withdraw and affirm the judgment of the

District Court entered on January 21, 2003. We certify that the issues presented in the

appeal lack legal merit and thus do not require the filing of a petition for writ of certiorari

with the Supreme Court. 3d Cir. LAR 109.2(b).

                      ______________________________________

TO THE CLERK:

       Please file the foregoing Opinion.




                                               /s/ D. Brooks Smith
                                            Circuit Judge




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