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


4-25-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1199




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                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-1199


                          UNITED STATES OF AMERICA

                                           v.

                                   BRYAN NEAL,

                                                      Appellant


                     Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                        (D.C. Criminal Action No. 04-cr-00007)
                    District Judge: Honorable Christopher C. Conner


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

                    Before: AMBRO and BECKER, Circuit Judges,
                             and STAGG,* District Judge

                             (Opinion filed April 25, 2006)


                                      OPINION


AMBRO, Circuit Judge



      *
       Honorable Tom Stagg, Senior District Judge for the Western District of
Louisiana, sitting by designation.
       On October 12, 2004, Bryan Neal was convicted by a jury of possession of a

firearm by a convicted felon. As a result, the District Court sentenced him to 55 months

in prison. Neal appeals his conviction and sentence. Neal’s appointed counsel on appeal

filed an Anders motion to withdraw as counsel, asserting that all potential grounds for

appeal are frivolous. Because we agree that Neal presents no meritorious issues on

appeal, we affirm the judgment of conviction and sentence and grant counsel’s motion to

withdraw.

                                              I.

       Under Anders v. California, 386 U.S. 738 (1967), if counsel “finds [a] case to be

wholly frivolous, after a conscientious examination” of the potential grounds for appeal,

s/he should “advise the court and request permission to withdraw.” Id. at 744. This

request must be accompanied by “a brief referring to anything in the record that might

arguably support the appeal,” id., “explain[ing] to the court why the issues are frivolous,”

United States v. Marvin, 211 F.3d 778, 781 (3d Cir. 2000), and demonstrating that s/he

has “thoroughly scoured the record in search of appealable issues,” id. at 780. A copy of

counsel’s brief must be furnished to the appellant, who must be given time to raise

nonfrivolous arguments in a pro se brief. Anders, 386 U.S. at 744; Third Circuit LAR

109.2(a) (2000). Neal was notified of his right to file a pro se brief and he did so.

       We “confine our scrutiny to those portions of the record identified by an adequate

Anders brief . . . [and] those issues raised in Appellant’s pro se brief.” United States v.



                                              2
Youla, 241 F.3d 296, 301 (3d Cir. 2001). We do not “comb the record . . . for possible

non-frivolous issues that both the lawyer and his client may have overlooked,” as “[our]

duty is merely to determine whether counsel is correct in believing those grounds [raised

are] frivolous.” United States v. Wagner, 103 F.3d 551, 552-53 (7th Cir. 1996). We

grant counsel’s Anders motion to withdraw if we believe “that the attorney has provided

the client with a diligent and thorough search of the record for any arguable claim,”

McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988), and if we conclude

“that the appeal lacks any basis in law or fact,” id. at 438 n.10.

                                              II.

       As we write for the parties, only a brief summary of pertinent facts and procedural

history is necessary. On January 7, 2004, a federal grand jury returned a two-count

indictment against Neal, charging him with possession of a firearm by a convicted felon,

in violation of 18 U.S.C. § 922(g)(1) (count one), and possession of a stolen firearm, in

violation of 18 U.S.C. § 922(j) (count two). The charges arose out of an incident that

occurred on October 1, 2003, during which Neal removed a gun from a man with whom

he had been drinking and kept it with himself several hours until the police arrested him

at a nearby rooming house. Neal conceded that he took the gun from his drinking

associate, but argued that he did so because his associate was drunk, belligerent and

brandishing the gun in a way that made Neal fear for his life and the lives of others. Neal

filed two substantive motions in limine—one requesting that the Court exclude any



                                               3
evidence of his prior criminal history and one requesting that the Court include in its jury

instructions a charge concerning the defense of justification—both of which were granted

by the District Court.1

       The jury acquitted Neal on count two but, as noted above, convicted him on count

one. Although he argues in his pro se brief that an “appeal should be allowed in order to

preserve an irrationality challenge to the conviction,” we agree with defense counsel that

there are no nonfrivolous appellate issues going to the validity of Neal’s conviction,

particularly provided that all evidentiary issues were decided in his favor.

       At sentencing, the District Court made findings of fact largely crediting Neal’s

version of his offense conduct, stating:

       The court credits the defendant’s explanation of the circumstances of the
       underlying offense. He went to a friend’s home by invitation after both of
       them had used substantial quantities of drugs and alcohol. When the
       defendant arrived, his friend appeared agitated and disturbed, likely from
       the drug abuse, and began waving a firearm . . . . The defendant justifiably
       felt threatened by his behavior. He took the gun and ran. While the
       defendant should not have engaged in the drug and alcohol abuse that led to
       this situation, it was reasonable for him to take the firearm under the
       circumstances as they developed.

Neal lodged three objections to his presentence report. First, he complained

that his prior Pennsylvania conviction of escape was not a “crime of violence” within the



       1
         The District Court did not charge the jury with the precise text regarding
justification that the defense initially requested, but the defense did not object to the
justification charge given. In any event, Neal does not raise any issue concerning the
justification charge in his pro se brief. While this issue is thus waived, there is no doubt
that the charge given was without error.

                                              4
meaning of U.S.S.G. § 2K2.1(a)(4)(A) because that escape involved only his failure to

return from his work-release job to the work-release facility where he was housed.

Second, he submitted that because the jury had found him not guilty of possessing a

stolen firearm, he should not receive a two-level upward adjustment on the basis that the

firearm was stolen pursuant to U.S.S.G. § 2K2.1(b)(4). Finally, he argued that, because

he admitted possessing the firearm at trial, he was entitled to a three-level downward

adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. The District Court

overruled each of these objections, adopted the presentence report’s Sentencing

Guidelines calculations indicating that Neal’s applicable range was 110 to 120 months

imprisonment, and then departed downward by more than fifty percent, sentencing Neal

to 55 months imprisonment.

       On appeal, Neal maintains that the District Court erred (1) by applying a two-level

upward adjustment after finding that the firearm was stolen and (2) by refusing to apply a

downward adjustment for acceptance of responsibility.2 As for his first argument, Neal

contends that once a defendant is found not guilty of certain conduct under the beyond a

reasonable doubt standard by a jury, the prosecution should not be permitted to use this




       2
        Neal does not re-raise his contention that his Pennsylvania escape conviction does
not constitute a crime of violence for Guidelines purposes. In any event, that argument is
foreclosed by our holding in United States v. Luster, 305 F.3d 199, 200 (3d Cir. 2002),
cert. denied, 538 U.S. 970 (2003) (holding that escape is a “crime of violence” for
guidelines purposes because “by its nature [escape] presents a serious potential risk of
physical injury to another”).

                                             5
same conduct, considered now using the lower preponderance of the evidence standard, to

enhance that defendant’s sentence. The Supreme Court, however, has held expressly that

an acquittal on a charge does not prevent the District Court from considering at

sentencing the underlying conduct so long as it has been proven by a preponderance of

the evidence. United States v. Watts, 519 U.S. 148, 157 (1997) (per curiam) (holding that

defendant’s acquittal of using a firearm in relation to a drug trafficking crime by a jury

did not preclude sentencing court from determining that firearm was possessed in

furtherance of possession of cocaine base with intent to distribute).3 Thus, we reject

Neal’s argument that his sentence could not be adjusted under § 2K2.1(b)(4) for



       3
         Some courts have concluded that Watts is in tension with United States v. Booker,
543 U.S. 220 (2005). See, e.g., United States v. Coleman, 370 F. Supp. 2d 661, 669 (D.
Ohio 2005) (stating that “[t] he viability of Watts . . . was questioned by Justice Stevens’ .
. . majority opinion in Booker”); United States v. Gray, 362 F. Supp. 2d 714, 721
(S.D.W.Va. 2005) (“The reasoning in Watts . . . was drawn into serious question by the
constitutional majority [opinion] in Booker.”).
        In the principal opinion in Booker on the constitutionality of the federal Sentencing
Guidelines, Justice Stevens described Watts as “present[ing] a very narrow question
regarding the interaction of the Guidelines with the Double Jeopardy Clause” and as
having not had “the benefit of full briefing or oral argument.” 543 U.S. at 240 n.4. For
those reasons, it was “unsurprising that [the Court] failed to consider fully the issues
presented to us in these cases.” Id. Yet, Justice Stevens’ conclusion that Watts is not
“inconsistent with today’s decision” supports the determination that Watts remains good
law. Id. at 240. In any event, whether Watts survives Booker is not for a federal court of
appeals to decide. See Agostini v. Felton, 521 U.S. 203, 237 (1997) (stating that “[i]f a
precedent of this Court has direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of Appeals should follow the case
which directly controls, leaving to this Court the prerogative of overruling its own
decisions.”). Therefore, until the Supreme Court expressly overrules Watts, we are
obligated to apply its holding to this case and rule that Neal’s stolen firearm argument
lacks merit at this time.

                                              6
possession of a stolen firearm.

       Neal’s contention that his sentence should have been adjusted under § 3E1.1 for

acceptance of responsibility is also off the mark. As we have made clear, see, e.g., United

States v. Ceccarani, 98 F.3d 126, 129 (3d Cir. 1996), application note 1(b) to § 3E1.1

states that sentencing courts should consider, in addition to other factors, the defendant’s

“voluntary termination or withdrawal from criminal conduct or associations” in

determining whether he has accepted responsibility. U.S.S.G. § 3E1.1 cmt. 1(b). It is

undisputed here that Neal, despite warnings from probation officers and the District

Court, “repeatedly returned to drug use, flouting federal and state laws, and the terms of

[the] [C]ourt’s orders of pretrial and presentence release.” Neal’s continued abuse of

cocaine subsequent to conviction but prior to sentencing countermands any inclination to

determine that he is eligible for an acceptance of responsibility adjustment.

                                         *****

       We, therefore, affirm the judgment of conviction and sentence. We also grant

counsel’s motion to withdraw.




                                              7
