                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-23-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3987




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                                                            NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                  Case No: 03-3987

                          UNITED STATES OF AMERICA

                                           v.

                                 TREVIS PINKETT,

                                               Appellant



                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                          District Court No.: 01-cr-00231-14
                    District Judge: The Honorable Stewart Dalzell


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   May 8, 2006

                     Before: BARRY, and SMITH, Circuit Judges,
                          and RODRIGUEZ, District Judge*

                                (Filed: May 23, 2006)


                             OPINION OF THE COURT


SMITH, Circuit Judge.



  *
   The Honorable Joseph H. Rodriguez, Senior District Judge for the District of New
Jersey, sitting by designation.

                                           1
       Trevis Pinkett’s counsel filed a motion for leave to withdraw as appellate counsel

and has submitted a brief in support of this motion pursuant to Anders v. California, 386

U.S. 738 (1967). Counsel argues that there are no nonfrivolous issues that can be raised

on appeal. The portions of the record identified by counsel, however, would support a

challenge to the legality of Pinkett’s sentence pursuant to United States v. Booker, 543

U.S. 220 (2005), and a remand for resentencing pursuant to United States v. Davis, 407

F.3d 162 (3d Cir. 2005). Accordingly, we find that counsel’s Anders brief is inadequate,

and we will grant counsel’s motion to withdraw, direct the appointment of substitute

counsel, and grant leave for new counsel to raise issues related to Booker.1

                                             I.

       On February 25, 2002, Pinkett pled guilty to a charge of conspiracy to distribute

cocaine in violation of 21 U.S.C. § 846. According to a revised Presentence Report

prepared on September 19, 2003, Pinkett faced a mandatory minimum sentence of ten

years and a guideline range of 360 months of imprisonment to life imprisonment as a

result of the facts to which he stipulated in his written plea agreement. The Presentence

Report included a two level upward adjustment pursuant to USSG § 3C1.1 (obstruction of

justice). The revised Presentence Report also eliminated a three level downward

adjustment pursuant to USSG § 3E1.1 (acceptance of responsibility), which had appeared

in two prior versions of the Presentence Report.


  1
    The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

                                             2
       At Pinkett’s sentencing hearing on September 26, 2003, the government moved for

a downward departure pursuant to 18 U.S.C. § 3553(e) and USSG § 5K1.1 (cooperation).

The District Court eventually granted this motion.

       Pinkett’s counsel did not object to the two level upward adjustment pursuant to §

3C1.1, but she did object to the elimination of the three level downward adjustment

pursuant to § 3E1.1. After hearing argument on this issue, the District Court found that

although Pinkett had accepted responsibility as of the time of sentencing, this was not a

“rare case” in which a downward adjustment pursuant to § 3E1.1 would be consistent

with an upward adjustment pursuant to § 3C1.1.2 Accordingly, the District Court

overruled this objection.

       Finally, Pinkett’s counsel also moved for a downward departure pursuant to USSG

§ 5H1.4 (physical impairment), noting that Pinkett was a paraplegic as a result of being

shot multiple times approximately two years before his arrest. The government opposed

this motion, and called as a witness the Health Systems Administrator for the Northeast

Region of the Bureau of Prisons, who testified with respect to the ability of the Bureau of

Prisons to address the special medical needs of inmates. In considering this motion, the

District Court noted that § 5H1.4 “is a discouraged basis,” and provides only that “an



  2
   Application Note 4 to § 3E1.1 provides that “[c]onduct resulting in an enhancement
under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily
indicates that the defendant has not accepted responsibility for his criminal conduct.
There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1
and 3E1.1 may apply.” USSG § 3E1.1.

                                             3
extraordinary physical impairment may be a reason to impose a sentence below the

applicable guideline range.” The District Court then found that while Pinkett’s condition

was serious, and that his motion for a departure was “not a frivolous motion by any

means,” Pinkett’s condition was not “so far out of the heartland as to warrant departure.”

Accordingly, the District Court denied this motion.

       Following its consideration and resolution of these issues, the District Court set a

sentence of 180 months of imprisonment, an additional five years of supervised release, a

$1000 fine, and a $50 special assessment. On instruction from her client, Pinkett’s

counsel then filed notice of appeal from his sentence.

       On April 26, 2004, Pinkett’s counsel filed her motion for leave to withdraw as

counsel and her supporting Anders brief. Pinkett was granted leave to file a pro se brief

in response, due June 2, 2004, but Pinkett never filed such a brief.

       On January 12, 2005, the Supreme Court handed down its opinion in Booker,

holding that the Federal Sentencing Guidelines could not constitutionally create a

mandatory sentencing regime, and rendering the guidelines advisory by striking the

statutory provision that had made them mandatory. See generally 543 U.S. 220. On

March 3, 2005, the parties were directed to comment on the applicability of Booker to

Pinkett’s sentence. The Docket Sheet indicates that a response on Pinkett’s behalf to this

order was received on March 17, 2005, but on March 24, 2005, Pinkett’s counsel moved

for leave to withdraw this response, and for an extension of time for Pinkett to file a pro

se response to our March 3, 2005, order. On April 25, 2005, we granted this motion,

                                              4
struck the March 17, 2005, response, and granted Pinkett an additional 21 days to file a

pro se response. Pinkett never filed such a response.

                                             II.

       When analyzing an Anders brief, we ask: “(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). “The

duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel

has thoroughly examined the record in search of appealable issues, and (2) to explain why

the issues are frivolous.” Id. Where our review confirms that there are no nonfrivolous

issues, we can grant counsel’s motion to withdraw and dismiss the appeal on the merits.

Id. at 299. In contrast, if we identify a nonfrivolous issue and thus determine that

counsel’s Anders brief is inadequate, we will grant counsel’s motion to withdraw and

appoint new appellate counsel to examine the nonfrivolous issue. Id. at 301-02.

       Pinkett’s counsel identified six possible issues in her Anders brief: (1) whether the

District Court had jurisdiction to accept Pinkett’s guilty plea; (2) whether Pinkett’s guilty

plea was valid; (3) whether Pinkett’s mandatory minimum and guideline range were

properly calculated; (4) whether the District Court should have sustained Pinkett’s

objection to the revised Presentence Report’s elimination of the downward adjustment for

acceptance of responsibility; (5) whether the District Court should have granted a greater

downward departure on the government’s motion; and (6) whether the District Court

should have granted Pinkett’s motion for a downward departure in light of his

                                              5
paraplegism.

       As an initial matter, we are satisfied that Pinkett’s counsel diligently examined the

record for appealable issues. Having performed our own close scrutiny, we also agree

with counsel that there are no nonfrivolous issues with respect to the jurisdiction of the

District Court or the validity of Pinkett’s plea. Accordingly, we will affirm Pinkett’s

conviction pursuant to his guilty plea.

       In contrast, we conclude that the legality of Pinkett’s sentence could be

nonfrivolously challenged under the Supreme Court’s decision in Booker and our

decision in Davis. Specifically, in Davis we decided to remand for resentencing all cases

pending on direct review when Booker was decided and in which the defendant was

sentenced under the mandatory guidelines regime. See 407 F.3d at 165. Here, the record

confirms that the District Court treated the guidelines as mandatory rather than advisory.

Consequently, on request, Pinkett would be entitled to a remand for resentencing pursuant

to Booker and Davis.

       Pinkett’s counsel understandably did not anticipate and identify this issue in her

original Anders brief. She has not, however, submitted a response to our request for a

discussion of Booker, and appears to have instead delegated that responsibility to Pinkett

himself acting pro se. Further, we do not find that her lack of a Booker response, and

Pinkett’s lack of a pro se Booker response, are indicative of an affirmative statement on

Pinkett’s behalf that he is waiving any Booker issues on appeal. Cf. Davis, 407 F.3d at

166 (“In this opinion, we express no view on waiver or alternative sentences. We will

                                              6
continue to review each appeal individually. Appellants have been directed to state

whether they wish to challenge their sentence under Booker. For those who do not, we

consider the appeal on its merits.”).

       Consequently, we find that counsel’s Anders brief is inadequate. In accordance

with this court’s precedents, we will grant counsel’s motion to withdraw. See Youla, 242

F.3d at 302. Pursuant to L.A.R. 109.2(a), we will direct the Clerk to discharge current

counsel, appoint substitute counsel, restore the case to the calendar, and fix a subsequent

briefing schedule. Finally, we will also grant leave for new counsel to raise issues related

to Booker.




                                             7
