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


3-11-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3862




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"USA v. Mitchell" (2005). 2005 Decisions. Paper 1455.
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                                                        NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                   Case No: 03-3862

                           UNITED STATES OF AMERICA

                                             v.

                                RICHARD MITCHELL,

                                            Appellant

                            __________________________

                    On appeal from the United States District Court
                              for the District of New Jersey
                    District Judge: The Honorable Mary L. Cooper
                               District Court No. 01-cr-430
                            __________________________

                     Submitted Pursuant to Third Circuit LAR 34.1
                                    June 16, 2004

                      Before: ALITO and SMITH, Circuit Judges,
                              and DUBOIS, District Judge *

                               (Filed: March 11, 2005)
                                  _________________

                              OPINION OF THE COURT
                                 _________________

SMITH, Circuit Judge.

      On January 16, 2003, Richard Mitchell pleaded guilty to conspiracy to distribute


  *
    The Honorable Jan E. DuBois, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
heroin in violation of 21 U.S.C. § 846. At sentencing on September 9, the District Court

determined that Mitchell was a career offender under United States Sentencing Guideline

(“U.S.S.G.”) § 4B1.1, resulting in an enhancement of his offense level to 32 and his

criminal history category to VI. The District Judge accorded a three level decrease for

Mitchell’s acceptance of responsibility, yielding a guideline range of 151 to 188 months

of imprisonment. The Court denied Mitchell’s request under U.S.S.G. § 4A1.3 for a

downward departure on the basis that his criminal history overstated the seriousness of his

prior criminal activities. Mitchell was sentenced to 151 months imprisonment, the low

end of his guideline range, followed by a three year term of supervised release. After

filing a timely notice of appeal, Mitchell’s counsel moved to withdraw pursuant to Anders

v. California, 386 U.S. 738 (1967). Mitchell filed an informal brief pursuant to Third

Circuit Local Appellate Rule 109.2(a).

       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

                                              2
search of appealable issues,” and it must “explain why the issues are frivolous.” Thus,

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

Anders; and (2) “whether an independent review of the record presents any non-frivolous

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”). If review fails to

reveal any non-frivolous issues, the court “may grant counsel’s request to withdraw and

dismiss the appeal.” Anders, 386 U.S. at 744.

         After considering counsel’s Anders brief, we are satisfied that counsel thoroughly

examined the record for issues of arguable merit and fulfilled the requirements of

Anders. Given Mitchell’s guilty plea, he is limited to a few select issues upon which he

may base his challenge on appeal: the District Court’s jurisdiction, the validity of the

guilty plea, and the legality of the sentence. See United States v. Broce, 488 U.S. 563,

574-76 (1989); 18 U.S.C. § 3742(a). There is no basis for disputing the District Court’s

jurisdiction over this federal criminal offense. See 18 U.S.C. § 3231.1

         Counsel asserted that there were no deficiencies with regard to Mitchell’s guilty

plea. To demonstrate that Mitchell’s plea was voluntary and intelligent, counsel recited

the history of the negotiations resulting in the plea agreement for this drug conspiracy

offense. In addition, counsel appended the plea agreement and the transcript of the guilty



  1
      We exercise appellate jurisdiction pursuant to 18 U.S.C. § 3742(a).

                                               3
plea colloquy. Although Mitchell’s informal pro se brief challenges the integrity of his

guilty plea, our review of the appended plea agreement and colloquy verifies that

Mitchell’s plea complied with both the requirements of Federal Rule of Criminal

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

       Mitchell challenges his sentence on the basis of United States v. Booker, 543 U.S.

__, 125 S.Ct. 738 (2005). Having determined that the sentencing issues appellant raises

are best determined by the District Court in the first instance, we will vacate the sentence

and remand for re-sentencing in accordance with Booker.

       An appropriate order will follow.
