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


12-10-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2835




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 02-2835


                          UNITED STATES OF AMERICA

                                          v.

                                 TERIAN TOOMER,
                                            Appellant


            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                           D.C. Crim. No. 01-cr-00573-1
                 District Judge: The Honorable Harvey Bartle, III


                     Submitted Under Third Circuit LAR 34.1(a)
                               November 19, 2003


            Before: RENDELL, BARRY, and CHERTOFF, Circuit Judges


                         (Opinion Filed: December 10, 2003 )


                                      OPINION




BARRY, Circuit Judge

      On September 19, 2001, in the Eastern District of Pennsylvania, a federal grand

jury returned a one-count indictment charging Terian Toomer (“Toomer”) with
possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).

Pursuant to 18 U.S.C. § 924(e), a notice of prior convictions was included. On April 12,

2002, Toomer appeared before the Honorable Harvey Bartle, III, and, pursuant to a

written plea agreement, pled guilty to the indictment. At sentencing, Judge Bartle

determined that Toomer was an armed career criminal given that his record included three

adult convictions for violent offenses. As such, Section 4B1.1 of the United States

Sentencing Guidelines applied. Toomer’s offense level, after a reduction by three levels

for acceptance of responsibility, was 31 and his criminal history category was VI. His

guideline imprisonment was 188 to 235 months, and he was sentenced to the top of that

range.

         Counsel has submitted a brief pursuant to Anders v. California, 386 U.S. 738

(1967), asserting that Toomer has no non-frivolous basis for appeal. 1 Toomer

subsequently submitted a pro se brief asserting that his appeal is meritorious. We have

jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. After careful review, we will




   1
    Under Anders, appointed counsel may request permission to withdraw from a case
where, after a conscientious examination, he determines that the appeal is wholly
frivolous. Anders, 386 U.S. at 744. Counsel must support his request with a brief, which
demonstrates that a thorough search has been conducted for appealable issues, makes
reference to anything in the record that might arguably support an appeal, and explains
why any potential issues would be frivolous. Id.; United States v. Marvin, 211 F.3d 778,
780-81 (3d Cir. 2000). When counsel submits an Anders brief, our inquiry is twofold:
“(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).

                                             2
grant counsel’s motion to withdraw and affirm the judgment and sentence of the District

Court.

         Because Toomer entered an unconditional guilty plea on the record in open court,

his arguments on appeal are limited to challenging the jurisdiction of the District Court,

the validity of the plea, and the legality of the sentence imposed. See United States v.

Broce, 488 U.S. 563 (1989). The District Court had jurisdiction pursuant to 18 U.S.C. §

3231 for alleged offenses against the United States under 18 U.S.C. §§ 922(g)(1) and

924(3). Moreover, our review of the record indicates that Toomer’s guilty plea was

knowing and voluntary and that the District Court complied with the requirements of Rule

11 of the Federal Rules of Criminal Procedure in accepting the plea. Toomer’s sole

complaint regards the legality of his sentence. He states that he wishes to challenge his

prior convictions as constitutionally invalid and a “miscarriage of justice.” In Custis v.

United States, 511 U.S. 485 (1994), the Supreme Court of the United States held that a

defendant facing sentence under the Armed Career Criminal Act may not challenge the

predicate convictions unless he or she had not been represented by counsel. During none

of Toomer’s prior convictions was he without counsel.

         Accordingly, the judgment of the District Court will be affirmed, and counsel’s

motion to withdraw will be granted.




                                              3
TO THE CLERK OF THE COURT:

    Kindly file the foregoing Opinion.


                                         /s/ Maryanne Trump Barry
                                         Circuit Judge




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