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


6-16-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4103




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"USA v. Douglas" (2003). 2003 Decisions. Paper 454.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/454


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 02-4103
                                     ___________

                          UNITED STATES OF AMERICA

                                           v.

                           ELISHA DERRICK DOUGLAS,

                                                     Appellant

                                     ___________

                    On Appeal from the United States District Court
                           for the District of New Jersey

               District Court Judge: The Honorable Garrett E. Brown, Jr.
                           (D.C. Criminal No. 02-cr-00551)
                                     ___________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                    June 5, 2003

   Before: BARRY, FUENTES, Circuit Judges, and MCLAUGHLIN,* District Judge.

                            (Opinion Filed: June 16, 2003)
                             ________________________

                              OPINION OF THE COURT
                             ________________________




      *
       Hon. Mary A. McLaughlin, U.S. District Judge for the Eastern District of
Pennsylvania, sitting by designation.
FUENTES, Circuit Judge:

       On July 18, 2002, Elisha Derrick Douglas entered a plea of guilty to one count of

illegally entering the United States after being deported subsequent to a conviction for an

aggravated felony, in violation of 8 U.S.C. § 1326. On October 21, 2002, the District Court

sentenced Douglas to a prison term of eighty-four (84) months, consecutive to another

undischarged term of imprisonment, and three years of supervised release. Douglas’s

counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), expressing his

belief that Douglas cannot raise any non-frivolous issues for our review, and directing us, as

is required under Anders, to the issues that he thought Douglas might raise on appeal.

Douglas filed a pro se brief urging us to exercise leniency in reducing his sentence. We have

appellate jurisdiction pursuant to 28 U.S.C. § 1291.1 Because there are no non-frivolous

issues to be raised on appeal, we will affirm the District Court’s judgment and grant defense

counsel’s motion.

       First, counsel notes that the District Court complied with the requirements set forth

in Federal Rule of Criminal Procedure 11 during Douglas’s plea colloquy. Douglas was

sworn and advised of his constitutional rights, which he then waived. (App. 27-31) The

District Court established that Douglas was mentally competent and understood the nature

and consequences of the proceedings. Id. at 27-29, 35. The District Court determined that

Douglas’s decision to waive indictment and plead guilty was knowing and voluntary, and that

he had discussed his case with counsel. Id. at 29, 31-35. Finally, a factual basis for the count


       1
        Because we write primarily for the parties and they are quite familiar with the
factual background of this case, we proceed direct to the legal analysis.

                                               2
was set forth on the record, and Douglas admitted his guilt. Id. at 36-37. Because all of the

statutory and constitutional requirements for a plea colloquy were met in this case, we agree

with counsel that no successful appellate issue can be raised in this regard.

       Next, counsel notes that the District Court complied with the requirements of Federal

Rule of Criminal Procedure 32 in conducting Douglas’s sentencing proceeding. The District

Court confirmed that Douglas and his counsel had reviewed and discussed the Presentence

Investigation Report (“PSR”), and gave both the government and the defense an opportunity

to comment on the PSR. (App. 40-41) The District Court heard from defense counsel,

Douglas, and the government on the appropriate sentence to impose within the guideline

range. Id. at 41-45. Finally, the District Court advised Douglas of his right to appeal his

conviction. Id. at 47. Because all of the statutory requirements for a sentencing proceeding

were met in this case, we agree with counsel that no successful appellate issue can be raised

with respect to this issue.

       Finally, counsel notes that there was no error in the sentence imposed by the District

Court. The charge to which Douglas pleaded guilty carried a statutory maximum sentence

of twenty (20) years. See 8 U.S.C. § 1326(b)(2). The parties agreed that the base offense

level was eight (8), see U.S.S.G. § 2L1.2(a), but also agreed that the level would be increased

by sixteen (16) because Douglas was previously convicted of a drug trafficking offense. See

U.S.S.G. § 2L1.2(b)(1)(A). Finally, the parties agreed that the offense level should be

reduced by three (3) because Douglas had accepted responsibility for his crime. See

U.S.S.G. § 3E1.1. The adjusted offense level, accordingly, was twenty-one (21). Based on



                                              3
Douglas’s criminal history category of VI, he faced a sentencing range of seventy-seven (77)

to ninety-six (96) months. (PSR ¶ 71) Thus, the eighty-four (84) month sentence imposed

by the District Court was below the statutory maximum and within the guideline range.

       Defense counsel notes also that the District Court imposed the sentence to run

consecutively with an undischarged term of imprisonment for drug distribution, aggravated

assault, and resisting arrest despite defense counsel’s request to have the sentence run

concurrently. (App. 41-42) U.S.S.G. § 5G1.3(c) permits a district court to impose a sentence

concurrently, partially concurrently, or consecutively in the court’s discretion. Here, the

District Court explained that it was imposing the sentence consecutively because of

Douglas’s extensive criminal record and the fact that he had sustained three new convictions

since his illegal reentry. Id.   We do not think the District Court abused its discretion.2

Because the District Court’s sentencing determination is below the statutory maximum,

within the guideline range, and not an abuse of discretion, we agree with counsel that no

successful appellate issue can be raised with respect to the sentence.

       After carefully reviewing the briefs and accompanying materials of record, we will

affirm the judgment. Counsel conducted a conscientious review of the record and concluded

that there were no non-frivolous issues that could be raised on appeal, as required by Anders,



       2
        In his informal brief, Douglas stated his understanding that the decision to impose
his sentence consecutively was within the District Court’s discretion. Nonetheless, he
asked this Court to exercise leniency to reverse the imposition of a consecutive sentence.
We only review the District Court’s decision to impose a consecutive sentence for an
abuse of discretion. Once we conclude that the District Court did not abuse its discretion,
as we have in this case, we do not have any further authority to interfere with the District
Court’s sentencing determination on leniency or other grounds.

                                              4
386 U.S. at 744. Because counsel has complied with all of the procedures specified in

Anders, we will grant his motion for withdrawal.




_____________________________
TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion.




                                                    /s/ Judge Julio M. Fuentes
                                                    Circuit Judge




                                           5
