                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-18-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2200




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 05-2200
                                      ____________

                            UNITED STATES OF AMERICA

                                              v.

                                    ARTHUR ABLE,

                                            Appellant
                                      ____________

                            On Appeal from the District Court
                                   of the Virgin Islands
                                  (D.C. No. 03-cr-00128)
                      District Judge: Honorable Raymond L. Finch
                                      ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                     May 9, 2006

                 Before: ROTH, FISHER and COWEN, Circuit Judges.

                                  (Filed: May 18, 2006)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Defendant Arthur Able’s federal public defender brings a motion to withdraw as

counsel pursuant to Anders v. California, 386 U.S. 743 (1967), and its progeny. Counsel

asserts that there are no non-frivolous issues for appeal with respect to Able’s sentence
imposed by the District Court. Because we agree with Able’s counsel, we will grant the

motion and affirm Able’s sentence.

                                             I.

       As we write solely for the parties, and the facts are known to them, we will discuss

only those facts pertinent to our conclusion. Defendant Arthur Able, a.k.a. John

Nicholson, was found guilty on five counts relating to falsifying a United States Passport

and attempting to enter the United States using a falsified passport. Following the

publication of a presentence investigation report, the District Court determined that Able

had a combined offense level of 15, and a criminal history category of I. The District

Court sentenced Able on March 26, 2004, to a term of imprisonment of 12 months at

count one, to be served concurrently with a term of imprisonment of 24 months at counts

two through five. That sentence was within the applicable guidelines range of 18 to 24

months.

       Able subsequently appealed his sentence; he did not, however, appeal his

underlying conviction. In a non-published opinion dated February 24, 2005, we vacated

Able’s sentence in accordance with United States v. Booker, 543 U.S. 220 (2005), and

remanded the case to the District Court for resentencing. United States v. Able, 124

Fed.Appx. 113 (3d Cir. Feb. 24, 2005). The District Court held a resentencing hearing on

Wednesday, April 6, 2005. At that hearing, Able’s counsel requested that the court

resentence Able to a term of imprisonment of 19 months, which represented the time that



                                             2
Able had already served for the instant offense. The District Court complied with

counsel’s suggestion and resentenced Able to time-served.

       On July 27, 2005, Able’s federal public defender filed a motion with this Court to

withdraw as counsel, citing that there were no non-frivolous issues for appeal. On

July 29, 2005, Able’s counsel filed an Anders brief with this Court and served Able with a

copy of the brief. On August 5, 2005, and again on November 18, 2005, the Clerk’s

Office sent Able a letter stating that his counsel had filed an Anders brief. The letter

informed Able that he could file an informal pro se brief in support of his appeal. Able

has not to this date filed anything with this Court.

                                              II.

       We review independently an Anders brief filed by counsel to determine whether

counsel has adequately attempted to uncover the best possible arguments for the

defendant and whether counsel has explained the faults in those arguments. United States

v. Marvin, 211 F.3d 778, 781 (3d Cir. 2000). We will grant a defense counsel’s Anders

motion if we are satisfied that there are no non-frivolous issues for appeal that would

justify our review. United States v. Tannis, 942 F.2d 196, 197 (3d Cir. 1991).

                                             III.

       In the landmark decision of Anders v. California, the United States Supreme Court

developed a mechanism whereby appellate counsel who conscientiously believe that there

are no non-frivolous issues on appeal may advise the court and request permission to

withdraw as counsel. 386 U.S. 743 (1967). The Supreme Court concluded that an

                                              3
appointed counsel must act “in the role of an active advocate in behalf of his client, as

opposed to that of amicus curiae.” Id. at 744. In order to preserve the defendant’s

constitutional right to “substantial equity and fair process,” the Supreme Court suggested

that courts apply the following procedures: (1) if counsel believes that a case is wholly

frivolous after a conscientious examination of the record, counsel is required to advise the

court and request permission to withdraw; (2) counsel’s request to withdraw must be

accompanied by a brief referring to anything in the record that might arguably support the

appeal; (3) a copy of counsel’s brief must be furnished to the indigent defendant, allowing

the defendant time to raise any points that he or she chooses; and (4) the court must then

examine the proceedings to determine whether the case is frivolous. Id.1 If the court

determines that the case is frivolous, the court may grant counsel’s request to withdraw as

counsel and dismiss the appeal. If, however, the court determines that there are

meritorious grounds for appeal in the record, the court is required to appoint the

defendant new counsel to argue the appeal. Id.

       We have developed Third Circuit Rule 109.2(a) to comply with the suggestions set

forth by the Supreme Court in Anders. That rule provides as follows:



       1
        The Supreme Court has recently explained that the Anders framework is not an
“independent constitutional command,” and that it is not the sole “prophylactic
framework” that could constitutionally vindicate an indigent criminal defendant’s right to
appellate counsel. Smith v. Robbins, 528 U.S. 259, 272-73 (2000) (citations omitted).
Rather, the Anders procedure is one manner by which courts can ensure that a criminal
defendant’s constitutional rights are protected if defense counsel contends that there are
no non-frivolous grounds for appeal. Id. at 273.

                                              4
       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 in response pro
       se. After all briefs have been filed, the clerk will refer the case to the 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
       current counsel, appoint substitute counsel, restore the case to the calendar,
       and order supplemental briefing.

Third Circuit Rule 109.2(a). In addition, we have erected procedures judicially to ensure

that court-appointed counsel conduct an adequate, independent review of the record.

Specifically, we have held that “except in those cases in which frivolousness is patent, we

will reject briefs . . . in which counsel argue the purportedly frivolous issues aggressively

without explaining the faults in the arguments, as well as those where we are not satisfied

that counsel adequately attempted to uncover the best arguments for his or her client.”

United States v. Marvin, 211 F.3d 778, 781 (3d Cir. 2000).

       In this case, defendant’s counsel filed an Anders brief stating that there were no

non-frivolous issues for appeal. A copy of Able’s presentence investigation report, as

well as the transcript of his resentencing hearing before the District Court, was attached to

the brief. Defense counsel served Able with a copy of the brief, and the Clerk’s Office

gave Able the opportunity on two occasions to file with the Court an informal statement

raising any points as to why his conviction or sentence should be overturned. To this

date, Able has not responded.


                                              5
       Counsel asserted in her Anders brief that there were no non-frivolous issues

remaining for appeal regarding Able’s sentence because the District Court granted his

request to be resentenced upon remand to time served. After independently reviewing the

record, we agree. The District Court did not make any errors in calculating Able’s

advisory guideline range. Furthermore, because Able received the exact sentence he

requested on remand, there can be no possible argument that the particular sentence was

unreasonable. See United States v. Cooper, 437 F.3d 234 (3d Cir. 2006) (setting forth

factors to be applied to determine whether a sentence is reasonable). Thus, we cannot

discern any meritorious argument that Able could possibly advance on appeal.

       For these reasons, we will grant defense counsel’s Anders motion and affirm the

sentence imposed by the District Court.2




       2
        As a result, we conclude that it is not necessary to appoint counsel to file a
petition for rehearing in this Court or a petition for writ of certiorari in the United States
Supreme Court on Able’s behalf. See Third Circuit Rule 109.2(b).

                                               6
