                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-15-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2873




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                                                                             NOT PRECEDENTIAL

                             UNITED STATES COURT OF APPEALS
                                  FOR THE THIRD CIRCUIT


                                            No. 01-2873


                                 UNITED STATES OF AMERICA

                                                  v.

                                      BRANDON KITCHEN,

                                                               Appellant


                             Appeal from the United States District Court
                                for the Middle District of Pennsylvania
                              (D.C. Criminal Action No. 00-cr-00295)
                               District Judge: Honorable Malcolm Muir


                             Submitted Under Third Circuit LAR 34.1(a)
                                       September 27, 2002

                       Before: BARRY, AMBRO and GARTH, Circuit Judges

                                  (Opinion filed: October 11, 2002)




                                             OPINION


AMBRO, Circuit Judge:

       Defendant Brandon Kitchen appeals his sentence of fifty-seven months, imposed after he pled

guilty to violating 18 U.S.C. § 1791(a)(2) by possessing a prohibited object at the Allenwood Federal
Corrections Complex. Kitchen argues that the District Court did not have jurisdiction over his case and

that the sentence he received is illegal.

        Kitchen’s counsel, finding no non-frivolous issues to appeal, submitted a brief pursuant to

Anders v. California, 386 U.S. 738, 744 (1967). The brief does not, however, meet Anders'

requirements. We conclude that he raises only patently frivolous arguments. We therefore affirm

Kitchen's sentence and grant his counsel's motion to withdraw.

                                                BACKGROUND

        On July 3, 1997, prison officials at the Allenwood Penitentiary noticed a scuffle between

inmates. When they arrived at the scene, they found one inmate, Richard Beckwith, wounded and

bloody, and discovered two homemade knives nearby.

        The officials detained Kitchen and his co-defendant, Milton Huff, from the group of prisoners in

the area. Kitchen had Beckwith's blood on his belt, pants, and both shoes. Beckwith, who had been

stabbed ten times, identified Kitchen and Huff as the inmates who assaulted him. Beckwith was sent to

a hospital outside the prison for eight days.

        Kitchen was charged with and pled guilty to possessing a prohibited object in a federal

penitentiary in violation of 18 U.S.C. § 1791(a)(2). The District Court granted the United States'

motion for upward departure from the U.S. Sentencing Guidelines pursuant to USSG § 5K2.2, for the

serious injury inflicted on Beckwith, and § 5K2.6, for the use of a dangerous weapon. With a three-

level upward departure and an adjusted Guideline range of 51 to 60 months, Kitchen received a fifty-

seven month sentence, which he appeals.

                                                DISCUSSION

                                                    2
        If appointed counsel for a criminal defendant who wishes to appeal his case cannot after

thoroughly searching the record find any non-frivolous grounds for appeal, that counsel may file an

"Anders brief" with the court, requesting to withdraw as counsel. When we receive an Anders brief

from counsel, we must determine: “(1) whether counsel adequately fulfilled the rule’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).

        To meet the Anders requirements, a brief must "satisfy the court that counsel has thoroughly

examined the record in search of appealable issues" and "explain why the issues are frivolous." Id. The

three-page brief submitted by Kitchen's counsel does not adequately explain the case or the issues

raised therein (only one page of the brief contains legal argument), and it does not provide any legal

citations to support counsel's conclusion that no non-frivolous issues can be found.1 Counsel also failed

to attach all relevant materials from the record. This brief obviously falls far short of the brief described




   1
     Here, for example, is counsel's discussion of the legality of Kitchen's sentence in its
entirety:

                Sentence imposed was in the stated guideline, which was
                established at the Pre-sentence Hearing. Furthermore, while
                Defendant and Counsel's understanding was that the Court
                would impose a sentence of 60 months, the Court instead,
                lowered said sentence to 57 months. The Court properly set
                forth it's [sic] reason for the sentence. Counsel has thoroughly
                examined the record and therefore believes that sentence on
                this matter was a legal sentence.

Appellant's Brief at 4. Indeed, although the legality of the sentence is one of the two issues
raised, the Anders brief does not even tell us that the District Court departed upward from
the Sentencing Guidelines.

                                                      3
in Anders, 386 U.S. at 744, which should contain “ready references not only to the record, but also to

the legal authorities.” Id.; see also Youla, 241 F.3d at 300 (holding that brief with two pages of legal

analysis and no case law citations does not meet Anders requirements).

         Given the inadequacies, we must reject the Anders brief unless we are convinced that

“frivolousness is patent.” United States v. Marvin, 211 F.3d 778, 781 (3d Cir. 2000).2 The brief

submitted by the Government – which contains a more thorough explanation of the case and discussion

of the issues that Kitchen could raise in regard to the District Court's jurisdiction and the legality of his

sentence, as well as a supplemental appendix that fills in several gaps in the record, coupled with our

independent review of the record, convince us that Kitchen can present only patently frivolous issues

for appeal.

A.       Jurisdiction of the District Court

         Kitchen argues that the District Court did not have jurisdiction over this matter. He pled guilty,

however, to violating a law of the United States. Because this is so, his argument that the District Court

lacked jurisdiction is patently frivolous. See 18 U.S.C. § 3231 ("The District Courts of the United

States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the

laws of the United States.").3

     2
      See also id. ("[E]xcept 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.").
     3
      The Government also raises the issue whether the District Court complied with Federal
Rule of Criminal Procedure 11(e) when it accepted Kitchen’s plea. Kitchen’s counsel did
not raise this issue. In our independent investigation of the record, we found no evidence
that the District Court did not comply with Rule 11(e) and no evidence to support a claim

                                                       4
B.      Legality of the sentence

        Kitchen also contends that the sentence he received is illegal. The Government interprets this

contention to assert either that Kitchen's sentence was in excess of the statutory maximum or that the

District Court erred by granting the Government's motion for an upward departure, and we do as well.

We address each issue in turn.

        1. Kitchen pled guilty to one count under 18 U.S.C. § 1791(a)(2) of possessing a contraband

knife in prison and received a sentence of fifty-seven months imprisonment. Under 18 U.S.C. §§

1791(b)(3) and (d)(1)(B), the statutory maximum for this offense depends on the type of prohibited

object that the defendant possessed, with a five year maximum sentence for possession of “a weapon

(other than a firearm or destructive device).” Kitchen received a sentence of less than five years in

prison. His sentence therefore fell within the statutory maximum, and no arguably meritorious

contention to the contrary can be made.

        2. We review for an abuse of discretion the District Court's decision to depart from the

applicable Guidelines range, and we give due deference to the institutional advantage possessed by the

District Court in comparing one case to another. See United States v. Iannone, 184 F.3d 214, 227

(3rd Cir. 1999).

        A district court may impose a sentence outside the applicable Guidelines range

                 if the court finds "that there exists an aggravating or mitigating
                 circumstance of a kind, or to a degree, not adequately taken into
                 consideration by the Sentencing Commission in formulating the
                 guidelines that should result in a sentence different than that described.”



that Kitchen involuntarily entered the guilty plea.

                                                      5
USSG § 5K2.0 (quoting 18 U.S.C. § 3553(b)). Section 5K2.2 provides more specifically:

                 If significant physical injury resulted, the court may increase the
                 sentence above the authorized guideline range.

Id.     Likewise, §5K2.6 states:

                 If a weapon or dangerous instrumentality was used or possessed in the
                 commission of the offense the court may increase the sentence above
                 the authorized guideline range. The extent of the increase ordinarily
                 should depend on the dangerousness of the weapon, the manner in
                 which it was used, and the extent to which its use endangered others.

Id.

        Although Kitchen pled guilty only to possessing contraband, he and his co-defendant stabbed

another prisoner with a knife ten times. There can be no serious dispute that the District Court acted

within its discretion in awarding an upward departure in light of the significant physical injury inflicted

and the dangerous nature and injurious use made of the prohibited object – considerations otherwise

not accounted for in Kitchen's sentence.

        We also note that the District Court provided ample opportunity for Kitchen to respond to the

Government’s motion for upward departure, including granting Kitchen an extra seven weeks to reply.

In its order granting the departure, the District Court carefully weighed the arguments presented by the

parties and based its decision on specific facts within the record and on Kitchen’s failure to present any

evidence to support his arguments. Our review of the record suggests no possible basis for concluding

that the District Court abused its discretion by awarding a three-level upward departure pursuant to

USSG § 5K2.2 and § 5K2.6.

                                              CONCLUSION



                                                      6
       Despite the inadequacy of the Anders brief, we conclude that the issues raised therein lack any

arguable merit. We therefore affirm Kitchen's conviction and sentence, and grant counsel's motion to

withdraw as counsel.




TO THE CLERK:

       Please file the foregoing Opinion.




                                               By the Court,




                                                 /s/Thomas L. Ambro
                                               Circuit Judge




                                                  7
