                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-20-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1646




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"USA v. Adderly" (2007). 2007 Decisions. Paper 1591.
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NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   No: 06-1646

                         UNITED STATES OF AMERICA

                                          v.

                              JIMMY D. ADDERLY,

                                          Appellant


                  On Appeal from the United States District Court
                            for the District of New Jersey
                            District Court No. 04-CR-549
                 District Judge: The Honorable Jerome B. Simandle


                 Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                February 13, 2007

                    Before: SMITH and FISHER, Circuit Judges,
                          and DIAMOND, District Judge*

                             (Filed: February 20, 2007)


                                    OPINION


DIAMOND, District Judge.

      On July 28, 2004, Jimmy D. Adderly waived prosecution by indictment and



      *
       The Honorable Gustave Diamond, Senior District Judge for the United
States District Court for the Western District of Pennsylvania, sitting by
designation.
pleaded guilty pursuant to a written plea agreement to a one count information charging

him with possession with intent to distribute heroin, in violation of 21 U.S.C. §§

841(a)(1) and 841(b)(1)(C). On January 27, 2005, the District Court sentenced Adderly

to, inter alia, 151 months of imprisonment.

         During all proceedings in the District Court, Adderly was represented by Attorney

Francis S. Cutruzzula. Although Adderly advised Mr. Cutruzzula that he wished to

appeal his sentence, counsel did not file a notice of appeal. Adderly filed a pro se petition

under 28 U.S.C. § 2255, claiming ineffective assistance of counsel and seeking a court

order which would permit him to appeal his sentence. Current counsel, Anne C. Singer,

was appointed to represent Adderly on the § 2255 petition, which the District Court

granted by order dated February 17, 2006. The order granting the § 2255 petition

required counsel to file a notice of appeal nunc pro tunc on Adderly’s behalf, which was

done.1

         Adderly’s counsel concluded that there were no non-frivolous issues to appeal and

filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967),

together with a supporting brief. Consistent with this Court’s local rule, the Anders brief

was served on Adderly and he was advised that he could file an informal response brief.

See Third Circuit L.A.R. 109.2(a). Adderly never filed any such brief. After considering



         1
       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We
exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a). See United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).
                                              2
the arguments presented by defense counsel, the prosecution agreed that there were no

non-frivolous issues to raise on appeal.

       In Anders, the Supreme Court held that the “constitutional requirement of

substantial equality and fair process” necessitates that appellant’s counsel vigorously 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
       brief referring to anything in the record that might arguably support the
       appeal.

Id. In United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001), we reiterated that an

Anders brief must demonstrate that counsel has “thoroughly examined the record in

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

(citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000)).

       We have thoroughly reviewed the record in this appeal and we conclude that

defense counsel has satisfied Youla’s requirements. Her brief set forth the factual

background and the procedural history of the case, she explained that the waiver of

indictment and plea hearing and the sentencing hearing conformed with all legal

requirements, and she identified three possible issues for appeal relative to the District

Court’s application of the advisory United States Sentencing Guidelines, and explained

why each issue was frivolous.

       We agree with defense counsel that there is no basis to contest the validity of


                                              3
Adderly’s waiver of indictment and guilty plea. Our review of the plea colloquy

demonstrates that the District Court complied with the mandates of Federal Rule of

Criminal Procedure 11 and Boykin v. Alabama, 395 U.S. 238 (1969). The District

Court’s plea colloquy was thorough, the constitutional requirements for a valid plea were

established and it was confirmed that Adderly was competent and understood the nature

of the proceeding. Accordingly, we conclude that Adderly’s waiver of indictment and

guilty plea were knowing and voluntary.

       Likewise, defense counsel is correct that the sentencing hearing held by the

District Court complied with Federal Rule of Criminal Procedure 32(i), which sets forth

the requirements for sentencing. The District Court confirmed that the parties received

the presentence report, and defense counsel and the government were given the

opportunity to comment on the report and voice any objections. The District Court also

gave defense counsel an opportunity to speak on Adderly’s behalf, and Adderly was

given the chance to address the court. Thus, we conclude there is no basis to contest the

adequacy of the sentencing hearing.

       Defense counsel also correctly points out that there are no non-frivolous issues for

appeal concerning the District Court’s application of the career offender provision set

forth in § 4B1.1 of the advisory United States Sentencing Guidelines. Counsel identified

as a possible issue for appeal whether the District Court abused its discretion in refusing

to mitigate Adderly’s sentence based on his argument that career offender status

overstated his criminal history. Counsel correctly notes, however, that this Court lacks

                                             4
jurisdiction to review a district court’s decision to deny a downward departure, where, as

here, the district court determines a departure is not warranted. See Cooper, 437 F.3d at

333 (declining to review a district court’s discretionary decision to deny departure).

       We also agree with defense counsel that another possible issue for appeal, that is,

whether the District Court erred in applying U.S.S.G. § 4B1.1 because Adderly was not

advised before pleading guilty that the career offender Guideline might apply, lacks merit

because there is no such requirement. The District Court properly advised Adderly at his

plea hearing that the statutory maximum term of imprisonment was 20 years, that it was

not known at that time what his sentence would be, and that the determination of an

appropriate sentence would have to await preparation of the presentence report. The

District Court also explained how the advisory Sentencing Guidelines work. Adderly was

advised about the maximum possible sentence, and his sentence of 151 months

imprisonment was within that maximum, thus we conclude that the District Court did not

err in applying the career offender provision under the advisory Guidelines.

       Finally, defense counsel is correct that there is no non-frivolous issue for appeal

based on the two point increase in the advisory Guideline calculation under U.S.S.G. §

2D1.1(b)(1) because Adderly possessed a firearm in relation to the drug crime. As a

result of Adderly’s classification as a career offender, the assessment of those two points

did not otherwise increase his sentence.

       In sum, after conducting our own independent review, we find no non-frivolous

issues to raise on appeal. Accordingly, we will grant counsel’s motion to withdraw and

                                             5
we will affirm the January 28, 2005 judgment of the District Court. We further certify

that the issues presented in this appeal lack legal merit and thus do not require the filing

of a petition for writ of certiorari with the Supreme Court. Third Circuit L.A.R 109.2(b).




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