                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-18-2008

USA v. Lisa Phillip
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4303




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                                                       NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                     No. 07-4303


                          UNITED STATES OF AMERICA

                                            v.

                                   LISA PHILLIP,

                                           Appellant


                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                            District Court No. 07-cr-00107
                   District Judge: The Honorable Edwin M. Kosik


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                December 12, 2008

                Before: MCKEE, SMITH, and ROTH, Circuit Judges

                              (Filed: December 18, 2008)


                                       OPINION




SMITH, Circuit Judge.

      On March 12, 2007, a one count information was filed in the United States District



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Court for the Middle District of Pennsylvania charging Lisa Philip and Carl Johnson with

conspiring to defraud the United States in violation of 18 U.S.C. § 371. The information

alleged that Philip and Johnson, the father of her children, failed to report income

received while they were participating in a rental assistance program administration by

the United States Department of Housing and Urban Development. The applications they

completed in order to participate in the program required that they report all income. Yet

they failed to report either Johnson’s income, or the approximate “$500 per month in

rental income derived from a house owned in the name of [their] daughter.”

       During a thorough change of plea hearing, Philip pleaded guilty to the information.

She admitted she knew about both Johnson’s earnings and the rental income. At

sentencing, the District Court imposed a two year period of probation and ordered that

Philip make restitution totalling $15,473.00.

       Philip appealed.1 Philip’s defense counsel moved to withdraw pursuant to Anders

v. California, 386 U.S. 738 (1967). In Anders, the Supreme Court stated that the

“constitutional requirement of substantial equality and fair process” means that appellate

counsel must act as an advocate for the defendant. 386 U.S. at 744. Thus, counsel’s

       role as advocate requires that he support his client’s appeal to the best of his
       ability. Of course, if counsel finds his case to be wholly frivolous, after a
       conscientious examination of it, he should so advise the court and request
       permission to withdraw. That request must, however, be accompanied by a



  1
   The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

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       brief referring to anything in the record that might arguably support the
       appeal.

Id. The Anders brief, as we explained in United States v. Youla, 241 F.3d 296, 300 (3d

Cir. 2001), must demonstrate that counsel has “thoroughly examined the record in search

of appealable issues,” and it must “explain why the issues are frivolous.” Accordingly,

our inquiry is twofold: (1) whether counsel adequately fulfilled the requirements of

Anders; and (2) “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)); see also

Anders, 386 U.S. at 744 (explaining that the court must proceed, “after a full examination

of all the proceedings, to decide whether the case is wholly frivolous”).

       Philip’s counsel has identified the only bases for appeal in light of Philip’s guilty

plea: (1) an attack upon the validity of her guilty plea; and (2) a challenge to the

reasonableness of her probationary sentence. See United States v. Broce, 488 U.S. 563,

570-75 (1989). Counsel explained that the record supported the District Court’s finding

that she knowingly and voluntarily entered a plea of guilty. In addition, counsel pointed

out that Philip admitted during the plea colloquy that she knew about the income earned

by Johnson and from the rental property when she completed the forms to participate in

the rental assistance program. With regard to the reasonableness of her probationary

sentence, counsel asserts that she received the most lenient of sentences and that there is

no basis for her challenge.

       We agree that these issues are frivolous. The District Court’s plea colloquy

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complied with the mandates of Federal Rule of Criminal Procedure 11(b) and Boykin v.

Alabama, 395 U.S. 238 (1969). Inasmuch as Philip admitted she knew about the income

she failed to report, there is a factual basis for the plea of guilty. Nor is there any basis

for disturbing the District Court’s probationary sentence, which was imposed after the

District Court considered the factors set forth in 18 U.S.C. § 3553(a).

       We recognize that Philip has taken advantage of the opportunity to file an informal

brief as permitted by our Local Appellate Rule 109.2(b). She contests that there is

evidence to prove her guilt. She also asserts that her counsel erred by failing to adduce

other evidence to support her innocence. As we noted above, however, the guilty plea

colloquy established a factual basis for her plea, particularly in light of her

acknowledgment that the rental income “went into the household.”

       We conclude that counsel adequately fulfilled the requirements of Anders.

Because our own independent review of the record fails to reveal any nonfrivolous issues

for appeal, we will grant counsel’s motion to withdraw and affirm the judgment of the

District Court entered on October 29, 2007. 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).




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