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


6-9-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3188




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                                                  NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                     ___________


                                      No. 02-3188
                                     ___________


                           UNITED STATES OF AMERICA


                                           v.


                                   KASIMU CLARK
                                                Appellant.
                                     ___________


                    On Appeal from the United States District Court
                              for the District of Delaware
                              (Crim. No. 1:02-CR-00002)
                    District Judge: The Honorable Sue L. Robinson
                                     ___________


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                      June 5, 2003


 Before: BARRY and FUENTES, Circuit Judges and MCLAUGHLIN*, District Judge
                             (Opinion Filed: June 9, 2003)


* The Honorable Mary A. McLaughlin, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
                               ________________________

                              OPINION OF THE COURT
                             ________________________
FUENTES, Circuit Judge:

       On March 28, 2002, Kasimu Clark entered a plea of guilty to one count of passing

counterfeit checks in violation of 18 U.S.C. §§ 2 and 513. On July 23, 2002, Clark was

sentenced to a term of imprisonment of 10 months and was ordered to make restitution in

the amount of $6,990 and to pay a special assessment of $100. Clark’s counsel filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), expressing his belief that

Clark cannot raise any non-frivolous issues for our review, and directing us, as is required

under Anders, to the issues that he thought Clark might raise on appeal.

       The parties adopted the findings and guideline calculations of the Presentence

Report. With a total offense level of 8 and a Criminal History Category of II, Clark’s

sentencing range was 4-10 months of incarceration. Clark’s counsel does not contend

that these calculations were wrong or that the 10 month sentence imposed by the district

court was illegal. The sole issue presented for our consideration is whether the district

court abused its discretion in denying Clark’s request to serve his sentence via the

substitute confinement alternative of home detention provided by U.S.S.G. §

5C1.1(c)(2).1

       1
           U.S.S.G. § 5C1.1(c)(2) provides, in pertinent part:

                 (c) If the applicable guideline range is in Zone B of the
                 Sentencing Table, the minimum term may be satisfied by –

                        (2) a sentence of imprisonment that includes a term of
                        supervised release with a condition that substitutes
                        community confinement or home detention according

                                              -2-
       At the time of sentencing, Clark had served approximately 4 months of his

sentence because his incarceration commenced on April 1, 2002, when he reported to the

United States Marshal’s Service as he was ordered to after pleading guilty. Clark’s

counsel requested that the district court order that any portion of Clark’s sentence in

excess of the minimum guideline sentence of 4 months be served through home detention.

The district court ruled:

              I have reviewed the presentence report carefully and under the
              circumstances . . . we don’t have any record of the defendant
              working since 1999 so I’m not exactly sure what he has been
              doing over the past few years but it hasn’t been productive
              from what I can tell. In any event, I respectfully decline to
              adopt counsel’s recommendation and I am going to sentence .
              . . the defendant to a term of 10 months which is within the
              sentencing guideline.

Joint Appendix at A-26.

       A defendant may appeal from a sentence imposed by the district court only if the

sentence (1) was imposed in violation of law, (2) was imposed as a result of an incorrect

application of the sentencing guidelines, (3) is greater than that specified in the applicable

guideline range, or (4) was imposed for an offense for which there is no sentencing

guideline and is plainly unreasonable. See 18 U.S.C. § 3742(a); United States v. Torres,

251 F.3d 138, 151 (3d Cir. 2001), cert. denied, 534 U.S. 936 (2001). Here, Clark does



                     to the schedule in subsection (e), provided that at least
                     one month is satisfied by imprisonment[.]

U.S.S.G. § 5C1.1(c)(2).

                                             -3-
not, and indeed cannot, raise any of the above bases for appealing his sentence. “We do

not have jurisdiction to review a sentencing court’s discretionary refusal to impose a

substitute detention under Guidelines section 5C1.1(c)(2).” United States v. Perakis, 937

F.2d 110, 111 (3d Cir. 1991).

       After carefully reviewing the briefs and accompanying materials of record, we will

dismiss the appeal of the sentence imposed by the district court. Counsel conducted a

conscientious review of the record and concluded that there were no non-frivolous issues

that could be raised on appeal, as required by Anders, 386 U.S. at 744. We have

conducted an independent examination of the record before us, and we agree with counsel

that there are no non-frivolous issues that justify review. Because counsel has complied

with all of the procedures specified in Anders, we will grant his motion for withdrawal.

       For the foregoing reasons, we conclude that we lack appellate jurisdiction over this

appeal and will dismiss it and grant counsel’s request to withdraw.

_____________________________

TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion.

                                                        By the Court,




                                                        /S/ Judge Julio M. Fuentes

                                                        Circuit Judge



                                           -4-
