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


11-20-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2273




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                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-2273


                           UNITED STATES OF AMERICA

                                            v.

                                  SHCRAY HILL,
                                                       Appellant


                     Appeal from the United States District Court
                              for the District of New Jersey
                                 (D.C. No. 03-cr-00685)
                     District Judge: Honorable Jerome B. Simandle


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  November 7, 2006

        Before: SCIRICA, Chief Judge, BARRY and ALDISERT, Circuit Judges

                               (Filed: November 20, 2006)


                              OPINION OF THE COURT




ALDISERT, Circuit Judge

      Shcray Hill pleaded guilty to unlawful possession of a firearm and possession with

intent to distribute more than 500 grams of cocaine, and was ultimately sentenced to 180

months’ imprisonment. In this appeal from Hill’s sentence, his counsel has filed a brief
under the teachings of Anders v. California, 386 U.S. 738 (1967), in which he argues

there are no meritorious issues for this Court to resolve. Hill was furnished a copy of his

counsel’s argument and chose not to file a pro se brief in response. We have reviewed the

possible contentions outlined by counsel and agree that the issues presented are frivolous.

We will therefore affirm.

                                             I.

       The parties are familiar with the facts and proceedings in the District Court, so we

will only briefly revisit them here. On September 26, 2003, Hill pleaded guilty to a two-

count criminal indictment. Hill’s pre-sentence investigation report disclosed prior felony

convictions for Aggravated Assault on a Police Officer and Possession of a Controlled

Substance with Intent to Distribute Within 1,000 Feet of a School. Accordingly, the

District Court classified Appellant as a Career Offender under the Sentencing Guidelines,

exposing him to a guideline range of 262 to 327 months of imprisonment. At sentencing,

Hill argued that the Career Offender classification grossly overstated his criminal history.

The District Court agreed. It granted a downward departure and imposed a sentence of

190 months of prison time.

       Hill then appealed his sentence to this Court, which remanded for resentencing in

light of the principles announced in United States v. Booker, 543 U.S. 220 (2005). At the

resentencing hearing in April of 2005, the District Court reduced the original sentence by

an additional 10 months, imposing a term of 180 months’ imprisonment. Hill, still



                                             2
unsatisfied with the District Court’s decision, filed another appeal with this Court.

Appellant’s court-appointed attorney believes further appeal is frivolous and requests

permission to withdraw.

                                           II.

       In Anders, the Supreme Court set out a procedure for counselors to follow if they

conclude that an appeal would be fruitless. 386 U.S. at 744. An Anders brief must show

that counsel has “thoroughly examined the record in search of appealable issues,” and it

must “explain why the issues are frivolous.” United States v. Youla, 241 F.3d 296, 300

(3d Cir. 2001). Our inquiry is a two-step process; we first ask whether counsel adequately

fulfilled the requirements of Anders, and then determine “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)).

       After conducting a thorough review of the record, we are persuaded that counsel’s

brief correctly identifies and rejects potential appealable issues. Counsel has suggested

two issues are arguably not frivolous: (1) whether Hill deserved a more substantial

downward departure after the District Court determined that Hill’s Career Offender

classification overstated his criminal history, and (2) whether the court complied with

Booker and 18 U.S.C. § 3553(a) in re-sentencing.

       As to the first issue, we made it clear in United States v. Cooper, that we do not

review a district court’s discretionary denial of departures from advisory guidelines:



                                             3
       We follow the Courts of Appeals for the First, Sixth, Eighth, Tenth, and Eleventh
       Circuits in declining to review, after Booker, a district court’s decision to deny
       departure. See United States v. Burdi, 414 F.3d 216, 220 (1st Cir. 2005) (finding
       no jurisdiction to review a decision not to depart after Booker); United States v.
       Puckett, 422 F.3d 340, 345 (6th Cir. 2005) (same); United States v. Frokjer, 415
       F.3d 865, 874-75 (8th Cir. 2005) (“[W]e see no reason why Booker-which left
       intact §§ 3742(a) and (b)-should alter our rule that a district court’s discretionary
       decision not to depart downward is unreviewable.”); United States v.
       Sierra-Castillo, 405 F.3d 932, 936 (10th Cir. 2005) (declining to review decisions
       not to depart after Booker); United States v. Winingear, 422 F.3d 1241, 1245-46
       (11th Cir. 2005) (same).

437 F.3d 324, 333 (3d Cir. 2006).

       Nor is there any basis for deciding that Hill’s sentence was unreasonable. At his

original sentencing hearing he was the beneficiary of a downward departure adjustment

that reduced both his Total Offense Level and his Criminal History Category. At

resentencing, the District Court fully considered each of the factors enumerated in 18

U.S.C. § 3553(a) and meticulously explained why those factors could not justify an even

more lenient sentence than the one imposed. For the reasons set forth above, we conclude

that Hill’s direct appeal is frivolous and grant counsel’s motion to withdraw. We also

find it unnecessary to appoint counsel to file a petition for writ of certiorari in the

Supreme Court. See 3d Cir. LAR 109.2(b).

                                              ***

       We have considered all contentions presented by the parties and conclude that no

further discussion is necessary. We will affirm the judgment of the District Court.




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