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


7-31-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3531




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                                                                NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     Case No: 04-3531

                            UNITED STATES OF AMERICA

                                                v.

                                  DAMIEN D. CLAGON,

                                              Appellant


                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                               District Court No.: 03-CR-811
                     District Judge: The Honorable Berle M. Schiller


                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                     July 10, 2006

                 Before: SMITH, ALDISERT, and ROTH, Circuit Judges

                                   (Filed: July 31, 2006)


                                         OPINION


SMITH, Circuit Judge.

       On April 13, 2004, Damien D. Clagon pleaded guilty to one count of possession of

a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). The Guilty Plea Agreement

set forth the agreement of the parties, including a provision that Clagon voluntarily and

expressly waived all rights to appeal or to collaterally attack his conviction or sentence.
The waiver did not bar Clagon from filing an appeal, however, if the government

appealed from the sentence, the sentence exceeded the statutory maximum, or the

sentencing judge erroneously departed upward from the applicable sentencing guideline

range. An Acknowledgment of Rights signed by Clagon and his counsel enumerated the

rights that Clagon waived by pleading guilty. It also recited that Clagon waived his right

to appeal as provided by the Guilty Plea Agreement.

       The District Court conducted a guilty plea colloquy consistent with Federal Rule

of Criminal Procedure 11, reviewing the various rights that Clagon waived by pleading

guilty. When asked if he understood that he was waiving his right to appeal, Clagon

answered that he understood. At the conclusion of the plea colloquy, the District Judge

found that Clagon knowingly and voluntarily pleaded guilty and he accepted Clagon’s

guilty plea.

       Clagon’s sentencing occurred on August 19, 2004, after the Supreme Court’s

decision in Washington v. Blakely, 542 U.S. 296 (2004), which cast doubt on the

constitutionality of the United States Sentencing Guidelines. The District Judge advised

the parties that in light of Blakely, he was treating the guidelines as though they were

advisory and that he was free to sentence Clagon up to the statutory maximum of ten

years. Nonetheless, the Court considered the guideline range of 84 to 105 months,

together with Clagon’s prospects for rehabilitation in light of his criminal history, and

sentenced Clagon to the lower end of the guideline range, 84 months.

       Although Clagon had waived his right to appeal, and despite the fact that none of

                                              2
the contingencies had occurred which, under the agreement, would have allowed him to

file an appeal, Clagon filed a timely notice of appeal. His appellate counsel, who did not

represent him before the District Court, filed a motion to withdraw pursuant to Anders v.

California, 386 U.S. 738 (1967), asserting that he was unable to identify any nonfrivolous

basis for appeal.

       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. As we explained in United States v. Youla,

241 F.3d 296 (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.” Id. at 300. 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 full examination of all the proceedings,

to decide whether the case is wholly frivolous.”).

       Appellate counsel’s Anders brief correctly pointed out that Clagon’s guilty plea

limited the issues he could raise on appeal to whether he could be haled into court on the

offense charged, the validity of his guilty plea, and the legality of his sentence. See

United States v. Broce, 488 U.S. 563, 569 (1989); Tollett v. Henderson, 411 U.S. 258,

267 (1973). Counsel averred that “after careful review of the record,” he was unable to

                                              3
identify any good faith argument that the guilty plea was invalid or that the sentence was

illegal.

           Consistent with our local rules, appellate counsel served a copy of his brief and his

motion to withdraw upon Clagon. See 3d Cir. L.A.R. 109.2(a). Clagon took advantage of

his opportunity to file a pro se response, and argued that the District Court erred by

computing his guideline range after consideration of his prior convictions based on guilty

pleas.

           The prosecution agreed with Clagon’s appellate counsel that Clagon’s appeal was

frivolous. It also asserted that the appeal should be dismissed because Clagon had waived

his right to appeal and that there was no basis for setting aside Clagon’s appellate waiver.

As support for its position, the prosecution filed a supplemental appendix containing the

docket, the judgment, the plea agreement, and the transcripts of the guilty plea colloquy

and the sentencing hearing.

           In United States v. Khattak, 273 F.3d 557 (3d Cir. 2001), we declared that

“waivers of appeals, if entered into knowingly and voluntarily, are valid.” Id. at 562. We

recognized that some waivers may be invalidated if there is an error amounting to a

miscarriage of justice. In determining whether an error warrants invalidating an appellate

waiver, we observed that consideration should be given to the alleged error, its gravity, its

character, the impact of the error on the parties, and the extent to which the defendant

acquiesced in the result. Id. at 563 (quoting United States v. Teeter, 257 F.3d 14, 25-26

(1st Cir. 2001)).

                                                 4
       Appellate counsel’s Anders brief, however, did not recite the fact that Clagon had

waived his right to appeal. The Anders brief also failed to explain why Clagon’s guilty

plea complied with the dictates of Boykin v. Alabama, 395 U.S. 238 (1969), and Federal

Rule of Criminal Procedure 11. Nor did the brief address why the sentence imposed by

the District Court prior to the Supreme Court’s decision in United States v. Booker, 543

U.S. 220 (2005), did not need to be vacated and the matter remanded for resentencing in

accordance with our decision in United States v. Davis, 407 F.3d at 162, 165-66 (3d Cir.

2005) (en banc).

       Accordingly, we determined that counsel’s brief was inadequate and we directed

counsel to explain in a supplemental letter brief why the issues he identified, i.e., the

validity of the plea and legality of the sentence, were without arguable merit. Counsel’s

response appropriately addressed why the issues Clagon raised in his informal brief

lacked merit. Although we agree that the issues Clagon raised pro se do lack merit, we

note that appellate counsel’s response has yet to explain why the issues he identified are

frivolous.

       In Youla, we agreed with the Seventh Circuit that we should not scour the record to

identify for the defendant the issues to be addressed in deciding whether to grant

counsel’s motion to withdraw. 241 F.3d at 301 (citing United States v. Wagner, 103 F.3d

551, 552 (7th Cir. 1996)). Instead, we instructed that our review should be guided by the

Anders brief when it appears to be adequate on its face. Here, although the Anders brief

before us sufficiently identifies the issues, it is deficient on two counts. First, it is

                                                5
inadequate because the two pages of legal argument in appellate counsel’s Anders brief

did not explain why the issues identified by counsel were frivolous.1 Second, the Anders

brief failed to contain any citations to the record which would guide our review. Indeed,

the Appendix compiled by counsel failed to contain the relevant portions of the

proceedings of either the change of plea hearing or the sentencing hearing.2

       Nonetheless, because the prosecution filled this void by filing a supplemental

appendix, we are able to conduct a meaningful appellate review. Because we find no



  1
   In Anders, the Supreme Court observed that the no-merit letter did not facilitate
appellate review because “the court has only the cold record which it must review without
the help of counsel.” 386 U.S. at 745. To avoid this situation, the Anders Court directed
that appellate counsel must file a motion to withdraw together with a “brief referring to
anything in the record that might arguably support the appeal.” Id. This direction was not
merely hortatory, and counsel must be mindful that their advocacy serves a vital role in
our criminal justice system.
  2
    As we noted above, the Anders Court instructed counsel to include with his request to
withdraw “a brief referring to anything in the record that might arguably support the
appeal.” 386 U.S. at 744. We take this opportunity to reiterate the obvious: an Anders
brief, like any other appellate brief, should include citations to the relevant portions of the
record and those portions should be contained in the Appendix. See Anders, 386 U.S. at
745 (observing that the appellate court may vigorously pursue “its own review because of
the ready references . . . to the record”). This is not a novel requirement. Federal Rule of
Appellate Procedure 28(a)(9)(A) specifies that the argument section of the appellant’s
brief “must contain . . . appellant’s contentions . . . with citations to the . . . parts of the
record on which the appellant relies . . . .” Fed. R. App. P. 28(a)(9)(A) (emphasis added).
Moreover, Rule 30(a) provides that the appellant is responsible for preparing and filing an
appendix that contains “(A) the relevant docket entries in the proceeding below; (B) the
relevant portions of the pleadings, charge, findings, or opinion; (C) the judgment, order,
or decision in question; and (D) other parts of the record to which the parties wish to
direct the court’s attention.” Fed. R. App. P. 30(a). Although we think it goes without
saying, we point out that the relevant portions of a plea colloquy or a sentencing hearing
should be included in the Appendix to most Anders briefs.

                                               6
error constituting a basis to set aside Clagon’s waiver of his appellate rights, we agree

with the prosecution that Clagon’s appeal waiver is enforceable.

       After reviewing the record supplied by the prosecution, we conclude that Clagon

knowingly and voluntarily waived his appeal rights during the guilty plea colloquy. Prior

to the hearing, both Clagon and his counsel executed the Guilty Plea Agreement and the

Acknowledgment of Rights. Both documents memorialized the fact that Clagon agreed to

waive his right to appeal. Consistent with this representation, when the Court inquired

whether Clagon understood that he had the right to appeal and that the Guilty Plea

Agreement limited that right, Clagon affirmed that he understood.

       We recognize that this waiver occurred prior to the Supreme Court’s decision in

Booker. As we explained in United States v. Lockett, 406 F.3d 207 (3d Cir. 2005), the

subsequent change in the law effected by Booker, does not, without more, undermine the

validity of a defendant’s waiver of his appellate rights. Id. at 213-14.

       Arguably, Clagon’s appeal waiver might be invalid if Clagon’s guilty plea was

constitutionally infirm or his pre-Booker sentence had to be vacated in accordance with

our decision in United States v. Davis, 407 F.3d at 165-66 (concluding that defendants

sentenced under previous mandatory sentencing regime may be able to demonstrate plain

error and prejudice and deciding to remand such cases for resentencing). Neither scenario

is present in this case. Clagon’s guilty plea, as the transcript demonstrates, was knowing

and voluntary, complying with the requirements of both Boykin and Rule 11. Although

Clagon was sentenced pre-Booker, there was no reason to vacate his sentence inasmuch

                                              7
as the District Judge informed the parties that, in light of Blakely, he was of the opinion

that the federal guidelines were advisory and that he was free to sentence up to the

statutory maximum. As we explained in United States v. Hill, 411 F.3d 425 (3d Cir.

2005), a sentence imposed post-Blakely and pre-Booker on the basis that an indeterminate

sentencing scheme governed need not be vacated “as any error that may attach to a

defendant’s sentence under Booker is harmless.” Id. at 426.

       In sum, we are unable to find any error in the District Court proceedings which

would invalidate Clagon’s knowing and voluntary waiver of his right to appeal. For that

reason, we conclude that the appellate waiver is enforceable and we will dismiss this

appeal. In deciding that there was no error which would constitute a basis for setting

aside the appellate waiver, we have also determined that the issues Clagon could have

raised as a basis for appeal in light of his guilty plea are frivolous. As a result, we will

grant counsel’s motion to withdraw. We further certify that the issues presented in this

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

the Supreme Court. 3d Cir. L.A.R. 109.2(b).


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