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


11-20-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-4014




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                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 01-4014



                          UNITED STATES OF AMERICA

                                           v.

                              TODD MELVIN SPEARS,

                                                      Appellant




                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                       (D.C. Criminal Action No. 00-cr-00327)
                      District Judge: Honorable Sylvia H. Rambo


                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 24, 2003


        Before: SCIRICA, Chief Judge,* AMBRO and GARTH, Circuit Judges

                          (Opinion filed November 20, 2003)




                             OPINION OF THE COURT




* Judge Scirica began his term as Chief Judge on May 4, 2003.
AM BRO, Circuit Judge

         Having pled guilty to possession with intent to manufacture and distribute more

than 50 grams of crack cocaine, Todd Melvin Spears now seeks to appeal his sentence.1

Spears’s attorney, Allen C. Welch, has moved to withdraw as counsel and filed an Anders

brief to support his contention that Spears’s appeal presents no nonfrivolous issues for our

review.2 Subsequent to defense counsel’s filing the Anders brief, Spears submitted a pro

se “informal brief” and reply brief. Although Welch’s efforts were lacking, for the

reasons noted below we grant his Anders motion and affirm Spears’s sentence.

                                              I.

         A grand jury in Harrisburg, Pennsylvania, on December 6, 2000, indicted Spears

for distribution and possession with intent to distribute more than 50 grams of cocaine

base – a/k/a crack cocaine – in violation of 21 U.S.C. § 841(a)(1). On February 12, 2001,

Spears appeared before the District Court, waived indictment, and pleaded guilty to an

information charging him with the same offense. Spears’s plea was conditioned on his

agreement to cooperate with the Government in exchange for recommendations to the

District Court to depart downward from the maximum Sentencing Guidelines range on

the basis of Spears’s acceptance of responsibility and substantial assistance to the

   1
    We note that although the documents before the District Court indicate the
defendant’s name is “Todd Melvin Spears,” the pro se briefs he filed on appeal are signed
“Melvin T. Spears” and “Melvin Todd Spears.”
   2
       We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

                                              2
prosecution. The written plea agreement also provided for, inter alia, the dismissal of the

initial indictment and a stipulation that Spears possessed and distributed more than 50

grams of crack cocaine.

       The presentence investigation report (PSIR) indicated Spears sold 109.35 grams of

crack cocaine, including more than 50 grams sold directly to undercover police officers

on six occasions. Based on a total offense level of 34 and a Criminal History Category of

VI, the Guidelines sentencing range was 262 to 327 months. An addendum to the PSIR

was filed, noting Spears’s comments to several of the PSIR’s assertions, none of which

affected the Guidelines calculations. The Government also filed a motion stating Spears

had provided substantial assistance to the prosecution and recommending the District

Court depart downward. 3 The District Court took this into account, and sentenced Spears

to 250 months imprisonment, a $2,500 fine, and $100 special assessment.

                                             II.

       The Supreme Court in Anders v. California, 386 U.S. 738, 744 (1967), addressed

the duties of a lawyer appointed to represent an indigent defendant when, “after a

conscientious examination” of the case, he or she determines an appeal would be “wholly

frivolous.” Counsel “should so advise the court and request permission to withdraw,” but

“[t]hat request must . . . be accompanied by a brief referring to anything in the record that




   3
   Despite our many admonishments of Welch, we do recognize his efforts to procure
Government cooperation in this case.

                                              3
might arguably support the appeal.” Id. More recently, the Supreme Court held “that the

Anders procedure is merely one method of satisfying the requirements of the Constitution

for indigent criminal appeals,” and each state may “craft procedures that, in terms of

policy, are superior to, or at least as good as, that in Anders.” Smith v. Robbins, 528 U.S.

259, 276 (2000).

       Our Court has opted to codify the procedure suggested by Anders. Local

Appellate Rule 109.2(a) 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 (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 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 current counsel, appoint substitute counsel, restore the case to the
       calendar, and order supplemental briefing.

Third Circuit L.A.R. 109.2(a). “This rule, like the Anders case itself, provides only a

general explanation of the contours of the court’s and counsel’s obligations in the Anders

situation.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000). Indeed, we have

refined the scope of our inquiry when presented with an Anders brief to determine:

“(1) whether counsel adequately fulfilled [L.A.R. 109.2(a)’s] requirements; and (2)

whether an independent review of the record presents any nonfrivolous issues.” United

States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001) (citing Marvin, 211 F.3d at 780).



                                               4
Accordingly,

       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.

Id. (quoting Marvin, 211 F.3d at 781). In Marvin we rejected an Anders brief on both

grounds, 211 F.3d at 781, while in Youla we did so for the latter reason. 241 F.3d at 300.

As in those decisions, counsel in this case does not even mention the arguments raised by

Spears’s pro se brief.

       Those arguments are twofold. Stated simply, Spears claims that the District Court

erred in aggregating the drug quantities he sold on separate occasions to arrive at a total

amount of more than 50 grams, and also that the Court erred when it stated in its plea

colloquy that Spears may be subject to a mandatory minimum sentence of ten years. The

failure of Spears’s counsel to identify these issues includes, a fortiori, the failure to

explain why they are legally frivolous. See Youla, 241 F.3d at 201 (quoting Marvin, 211

F.3d at 781). “Counsel simply has not provided sufficient indicia that he thoroughly

searched the record and the law in service of his client so that we might confidently

consider only those objections raised.” Marvin, 211 F.3d at 781.

       Furthermore, the issues that Spears’s counsel did choose to include in his Anders

brief receive only cursory treatment, so skimpy it is more accurate to say their merit is not

explored. The “summary of argument,” in its entirety, is as follows:



                                               5
       This is an Anders Brief. There are no colorable issues that counsel identify
       [sic] at any point in the history of the case. The sentence was the result of a
       negotiated plea agreement, which gave the Defendant the benefit of precluding
       any further charges, while allowing for a downward departure for substantial
       assistance which he received.

Anders Brief at 3. In an approximately two-page argument section, counsel cites only one

case: the Supreme Court’s decision in Anders. He does not mention either the section of

the United States Code under which his client was convicted or the relevant Guidelines

provisions under which Spears was sentenced. The brief does include some citations to

the record, but the appendix does not contain the full transcript of the change of plea

hearing, as pages nine through eleven inexplicably are omitted. This portion of the

transcript includes an exchange between the District Court and the defendant on the

figures used to compute the total amount of drugs sold – thus it is relevant to both of

Spears’s aggregation and plea colloquy arguments on appeal – and fortunately the missing

pages are submitted as an appendix to the Government’s brief.4 Indeed, the Anders brief

offers little more than counsel’s repeated (and unsupported) assertion that because

Spears’s conviction and sentence were the result of a voluntary negotiated plea

agreement, he is precluded from asserting any nonfrivolous arguments on appeal.

       Again, while we recognize counsel need not include every possible claim of error

in an Anders brief, we reiterate that “the brief at a minimum must assure us that [counsel]




   4
    In contrast to the effort of defense counsel, we applaud the helpful and thorough
materials filed by the Government.

                                             6
has made a sufficiently thorough evaluation of the record to conclude that no further

discussion of other areas of the case is necessary.” Marvin, 211 F.3d at 780 (citing

United States v. Tabb, 125 F.3d 583, 585, 585 (7th Cir. 1997)). 5

                                            III.

       Upon an independent review of the record and legal precedent, however, we

conclude that Spears’s claims of error — aggregating quantities of crack cocaine for

sentencing purposes constitutes reversible error under United States v. Winston, 37 F.3d

235 (6th Cir. 1994), and the District Court erred in its plea colloquy by violating Rule 11

of the Federal Rules of Criminal Procedure — are without merit.

       Spears signed a written plea agreement, and admitted in open court, to possessing




   5
     We also note that the duties of a lawyer representing an indigent criminal defendant
on appeal are not satisfied merely by submitting an acceptable Anders brief. In this case,
it appears that W elch’s handling of Spears’s appeal has been lackadaisical from the start.
After Spears was sentenced on October 3, 2001, and his notice of appeal filed on October
15, 2001, this Court on January 18, 2002, granted a motion for appointment of counsel
under the provisions of the Criminal Justice Act. Id. at 7; Docket Sheet at 4. Also on
January 18th, we issued an order appointing Welch as CJA counsel to represent Spears
and creating deadlines for this representation. Docket Sheet at 4. Another order was
issued on March 6, 2002, directing Welch to show cause in writing on or before March 18
why he failed to order the transcript timely, enter his appearance on behalf of Spears, and
submit a criminal information statement. Id. Welch responded on March 18, 2002,
asking to be permitted to withdraw his appointment. This request was denied on March
29, 2002, and Welch again was directed to order the transcripts, enter his appearance, and
submit a criminal information statement within 14 days. Id. at 5. The clerk further
informed Welch that if he failed to do so, the matter would be referred to a panel of this
Court which may direct that counsel personally appear. Id. Welch was instructed that if
he believed the appeal presented no issues of arguable merit, he should submit an Anders
brief, which he finally filed on August 8, 2002. Id. at 5, 6.

                                             7
more than 50 grams of crack cocaine. The sentence imposed was pursuant to the

Sentencing Guidelines. Even assuming the permissible statutory maximum is contained

in § 841(b)(1)(B) (and not § 841(b)(1)(A)), Winston is not implicated because Spears’s

250 month sentence is less than the 40-year maximum proscribed by § 841(b)(1)(B). 6

Spears’s contention that the District Court erred in its plea colloquy is likewise based on

Winston’s bar on aggregating drug quantities. As just stated, however, Winston does not

apply here.

                                          *****

       In this context, we conclude that no issue of arguable merit exists on appeal. We

therefore affirm Spears’s conviction and sentence and grant counsel’s motion to

withdraw.


                                          By the Court,


                                          \s\ Thomas L. Ambro
                                          Circuit Judge




   6
     Winston is limited to mandatory sentences imposed pursuant to 21 U.S.C. § 841(b)
and does not reach those imposed under the Guidelines (which explicitly authorize
aggregation of drug quantities). 37 F.3d at 241 n.10. In fact, the Sixth Circuit has
recently reiterated that, when a sentence imposed pursuant to the Guidelines falls between
the statutory minimum and maximum lengths, Winston is inapplicable. See United States
v. Jernigan, 2003 WL 463483, at *3 (6th Cir. Feb. 18, 2003).
