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


4-21-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-3239




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                                                         NOT PRECEDENTIAL

                              UNITED STATES COURT OF APPEAL
                                  FOR THE THIRD CIRCUIT


                                              No. 02-3239


                                  UNITED STATES OF AMERICA

                                                    v.

                                    GRANT BARBOUR, a/k/a “G”

                                             Grant Barbour,

                                                         Appellant


                            On Appeal from the United States District Court
                                     for the District of New Jersey
                                (D.C. Criminal No. 01-cr-00373-10)
                               District Judge: Hon. Jerome B. Simandle


                           Submitted Pursuant to Third Circuit LAR 34.1(a)
                                           April 1, 2003

                      BEFORE: MC KEE, SMITH and COWEN, Circuit Judges

                                        (Filed : April 22, 2003)


                                               OPINION


COWEN, Circuit Judge.

        Appellant Grant Barbour and eleven co-defendants were charged in a one-count

indictment with conspiracy to possess and distribute a controlled substance in violation of
21 U.S.C. § 846. On November 1, 2001, Barbour pled guilty to possessing more than five

grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Barbour’s

violation carried a possible term of imprisonment between 188 and 235 months under the

relevant provisions of the United States Sentencing Guidelines. Prior to sentencing,

Barbour moved for a downward departure pursuant to U.S.S.G. §§ 5H1.3 and 5K2.0 based

on psychiatric illness and mitigating family circumstances. The District Court declined to

exercise its discretion to depart from the guidelines, and on August 2, 2002, Barbour was

sentenced to a prison term of 188 months. The District Court further sentenced Barbour to

a five-year period of supervised release to commence after his term of imprisonment. This

timely appeal followed. The District Court had jurisdiction under 18 U.S.C. § 3231, and we

exercise jurisdiction under 28 U.S.C. § 1291.

         Barbour’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967) stating that no non-frivolous issues exist for appeal. The United States agrees with

this representation. In Anders, the Supreme Court established that where a conscientious

examination of the record convinces counsel representing an indigent criminal defendant

that no meritorious issues exist for appeal, counsel may seek to withdraw from further

representation. Id. at 744; United States v. Youla, 241 F.3d 296, 299 (3d Cir. 2001).1 Our



   1
       Rule 109.2(a) of the Third Circuit states:
         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, 87 S. Ct.
         1396, 18 L. Ed. 2d 493 (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

                                                    2
evaluation of an Anders brief considers whether counsel has adequately fulfilled the

requirements of L. App. R. 109.2(a), and whether our independent review of the record

reveals any non-frivolous issues. Youla, 241 F.3d at 300; United States v. Marvin, 211 F.3d

778, 780-81 (3d Cir. 2000). A satisfactory Anders brief requires evidence that counsel has

thoroughly and conscientiously examined the record for appealable issues, and an

explanation of why the issues presented are frivolous. Youla, 241 F.3d at 300; Marvin, 211

F.3d at 780. It is not necessary for counsel to “raise and reject every possible claim,” but

the brief must demonstrate a conscientious review of the case. Youla, 241 F.3d at 300.




        After considering the submission of Barbour’s counsel, and following our own

independent review of the present record, we agree that there are no non-frivolous issues

for appeal. Prior to accepting Barbour’s plea, the District Court engaged in an extensive

colloquy focusing on Barbour’s mental impairment. Barbour’s counsel also correctly

notes that to the extent the District Court acknowledged its discretion to depart from the

Guidelines, but nonetheless determined that departure was not warranted, we lack

jurisdiction to review the sentence. United States v. Marin-Castaneda, 134 F.3d 551, 554

(3d Cir. 1998).



        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.


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        In addition to the arguments of counsel, Barbour has filed a pro se brief raising an

additional issue for appeal. Anders, 386 U.S. at 744; L. App. R. 109.2(a). Barbour argues

that at his sentencing the government mischaracterized the findings of Catherine Barber,

Ph.D., a clinical and forensic psychologist. Dr. Barber examined Barbour and concluded

that his mental health satisfied the clinical criteria for a schizoaffective disorder,

depressive type. Dr. Barber’s report concluded that “Mr. Barbour suffers from a

psychiatric condition of sufficient severity to have interfered significantly with his ability

to exercise the power of reason not only at the time of the offense but generally throughout

the course of his adult life.” Barbour argues that the government mischaracterized these

findings at the sentencing hearing by stating: “And I think, and counsel can certainly respond

if I’m misstating it, but I think counsel, in effect, concedes that there is no causal

association between the mental illness and the desire to profit from selling drugs.” App. at

137. From this statement, Barbour seeks to raise two constitutional challenges resting on a

denial of Due Process.

        First, Barbour argues that the District Court relied on the government’s

characterization in erroneously concluding that it lacked discretion to depart from the

guidelines. Barbour cites the Ninth Circuit’s decision in United States v. Roe, 976 F.2d

1216 (9th Cir. 1992), which remanded the denial of a downward departure motion under §

5H1.3, after finding clear error in the district court’s holding that the defendant’s severely

abusive upbringing was not sufficiently extraordinary to warrant departure. However, the

district court in Roe did not decline to exercise its discretion; rather, it believed it lacked

                                                        4
discretion to depart absent sufficiently extraordinary circumstances. Id. at 1218 n.1

(noting that “we are not reviewing the district court’s discretionary decision not to depart

from the Guidelines,” but “a factual finding that the district court believed prevented it from

exercising its discretion). In this case, the District Court repeatedly recognized that

“[u]nder 5H1.3, the Court has the discretion to depart downward . . . .” App. at 142.

        Proceeding from our own independent review of the record, we also consider for an

abuse of discretion the District Court’s determination that Barbour’s psychological

impairment was insufficiently extraordinary. Although we have not yet addressed this

issue, we note that several Circuit Courts have held that a downward departure may be

appropriate in cases of extraordinary childhood abuse. United States v. Walter, 256 F.3d

891, 894 (9th Cir. 2001); United States v. Rivera, 192 F.3d 81, 84-85 (2d Cir. 1999);

United States v. Pullen, 89 F.3d 368, 372 (7th Cir. 1996); but see Premachandra v. United

States, 101 F.3d 68, 70 (8th Cir. 1996). While these decisons do not announce the precise

parameters of extraordinary circumstances warranting departure, the cases indicate that the

defendant’s impairment must contribute to the commission of the offense. Rivera, 192

F.3d at 85-86; Pullen, 89 F.3d at 372; Roe, 976 F.2d at 1218.

        In this case, the District Court found that Barbour had failed to demonstrate a

sufficiently strong causal nexus between his mental impairment and his recidivism. App. at

143. Absent that nexus, the District Court reasoned, there was no basis for finding Barbour

did not appreciate the wrongfulness or criminality of his actions. App. at 145. Instead, the

District Court found that Barbour was a mature adult of average intelligence who engaged in

                                                     5
criminal activity for profit. App. at 144. The District Court concluded that Barbour’s

misconception of the risk of detection and arrest did “not present an unusual situation, and

certainly not a basis for departure.” App. at 145. For these reasons, the District Court

declined to exercise its discretion to depart from the Guidelines, and instead opted to

impose a sentence at the bottom of the range.

        Following the decisions in Rivera and Pullen we also decline to outline the precise

facts that warrant a finding of exceptional circumstances, “mindful that the determination of

whether the case is extraordinary is committed to the discretion of the district judge.”

Pullen, 89 F.3d at 372 (citing Koon v. United States, 518 U.S. 81 (1996)). Therefore, we

hold only that on the present record the District Court did not abuse its discretion in

finding that Barbour failed to demonstrate “that any abuse he may have suffered rose to the

extraordinary level that can be assumed to cause mental or emotional pathology.” Rivera,

192 F.3d at 86.

        Finally, Barbour argues that the government affirmatively misled the District Court

resulting in a prejudicial denial of his motion for a downward departure. Barbour did not

raise this argument before the District Court, and hence we consider his claim that the

District Court relied on the government’s characterization only for plain error. United

States v. Richards, 241 F.3d 335, 341 (3d Cir. 2001). Plain error requires the appellant to

show 1) that an error was committed, 2) that the error was plain, and 3) that the error

affected a substantial right. United States v. Hart, 273 F.3d 363, 371 (3d Cir. 2001) (citing

United States v. Olano, 507 U.S. 725 (1993)). If each of these factors indicates plain error,

                                                     6
we will correct the mistake only if it “seriously affected the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Reynoso, 254 F.3d 467, 474-75 (3d

Cir. 2001).

        Here, Barbour has not demonstrated that an error was committed because the

government’s statement at sentencing did not misrepresent Dr. Barber’s report. Dr. Barber

did not state that Barbour’s abuse caused his criminal acts, but that his condition “interfered

significantly with his ability to exercise the power of reason.” Supp. App. at 19. Dr. Barber

further noted that during her interview, Barbour’s demeanor did not suggest an attempt to

justify his criminal behavior, and “indeed, he failed to draw any relationship between his

early life events and his present behaviors.” Supp. App. at 15. Barbour’s trial counsel

concurred in this assessment, noting that he was “not suggesting a causal relationship” and

agreed that mental illnesses “may not have caused him to commit the offense.” App. at

122.

        In addition, the District Court reviewed Dr. Barber’s report and conclusions,

ultimately “accept[ing] the diagnosis of schizoaffective disorder, which was arrived at by

Dr. Barber.” App. at 143; see also id. at 135-36 (discussing additional findings). Taken

together, Dr. Barber’s report, the statements of Barbour’s counsel, and the District Court’s

independent review, all demonstrate that the government did not misrepresent the

psychological findings by stating “that there is no causal association between the mental

illness and the desire to profit from selling drugs.” App. at 137.

        For the foregoing reasons, we find that the issues raised in this appeal lack legal

                                                       7
merit, and find no other non-frivolous issues for review. L. App. R. 109.2(b). Accordingly,

we will grant counsel’s motion to withdraw and affirm the judgment of the District Court

entered on August 6, 2002.




TO THE CLERK:

        Please file the foregoing opinion.




                                                /s/ Robert E. Cowen
                                                United States Circuit Judge




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