                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-11-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4657




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"USA v. DeMuro" (2005). 2005 Decisions. Paper 709.
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NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                   Case No: 03-4657

                           UNITED STATES OF AMERICA

                                             v.

                                 FELIX DEMURO, JR.,
                                          Appellant


                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                  Crim. No.: 97-310-4
                     District Judge: The Honorable J. Curtis Joyner


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 19, 2004

                      Before: ROTH and SMITH, Circuit Judges,
                          and DEBEVIOSE,* District Judge

                                (Filed: August 11, 2005)


                              OPINION OF THE COURT


SMITH, Circuit Judge.

      On November 25, 2003, Appellant Felix DeMuro stipulated to violating the terms

of his supervised release by committing several state criminal offenses and by submitting


  *
   The Honorable Dickinson R. Debevoise, Senior District Judge for the District of New
Jersey, sitting by designation.
two urine samples which were positive for the presence of marijuana. In light of the

stipulated violation, the United States District Court for the Eastern District of

Pennsylvania imposed an additional term of twenty four months’ incarceration. DeMuro

filed a timely appeal.1

       DeMuro’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), stating that no non-frivolous issues exist for appeal. Anders recognized that the

“constitutional requirement of substantial equality and fair process” necessitates that

appellate counsel make a conscientious examination for “anything in the record that

might arguably support the appeal.” Id. at 744. Thus, in United States v. Youla, 241 F.3d

296 (3d Cir. 2001), we declared that the “duties of counsel when preparing an Anders

brief are (1) to satisfy the court that counsel has thoroughly examined the record in search

of appealable issues, and (2) to explain why the issues are frivolous.” Id. at 300.

       Counsel has satisfied these requirements. Because DeMuro stipulated to the fact

that he violated the terms of his supervised release, counsel asserts that the only possible

issue for appeal is the term of imprisonment imposed by the District Court. Such a

contention, counsel points out, is frivolous because the length of the sentence is

discretionary, and we have previously established in United States v. Schwegel, 126 F.3d

551 (3d Cir. 1997), that the sentencing ranges set out in U.S.S.G. § 7B1.4 are only

advisory. We agree with counsel’s assessment.

  1
    The District Court exercised jurisdiction under 18 U.S.C. § 3231. Appellate
jurisdiction exists under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                              2
       We are mindful of the Supreme Court’s decision in United States v. Booker, 125

S.Ct. 738 (2005), which declared that the sentencing guidelines are advisory only. Id. at

757. Booker does not affect this appeal inasmuch as DeMuro’s sentence did not result

from the application of a mandatory sentencing scheme.2 Schwegel, 126 F.3d at 552.

       Accordingly, we will grant counsel’s motion to withdraw, and we will affirm the

judgment of the District Court. We certify that the issues presented in the appeal lack

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

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




  2
   We note that DeMuro was notified by his counsel of the opportunity to file a pro se
brief with this Court, but that DeMuro declined to do so. Anders, 386 U.S. at 744, 3rd
Cir. L.A.R. 109.2(a).

                                               3
