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


9-26-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2052




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                                                     NOT PRECEDENTIAL
                     THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                       No. 06-2052
                                      _____________

                            UNITED STATES OF AMERICA

                                              v.

                                   BRUCE ANDERSON
                                       a/k/a Cap

                                       Bruce Anderson,
                                             Appellant
                                     _______________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                                  (D.C. No. 03-cr-00423)
                     District Judge: Honorable Katharine S. Hayden
                                     _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                 September 26, 2008

               Before: BARRY, AMBRO, and JORDAN, Circuit Judges,

                                (Filed September 26, 2008)
                                     _______________

                                OPINION OF THE COURT
                                    _______________

JORDAN, Circuit Judge.

       Bruce Anderson appeals his conviction and sentence for violating 18 U.S.C.

§ 2314, which prohibits “transport[ing] ... in interstate ... commerce any goods ... or
money, of the value of $5,000 or more, knowing the same to have been stolen,” and 18

U.S.C. § 371, which prohibits “conspir[ing] ... to commit any offense against the United

States.” Anderson’s counsel has filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), requesting permission to withdraw as counsel, and Anderson has filed a pro

se brief in response. Because we conclude that Anderson’s appeal is “wholly frivolous,”

Anders, 368 U.S. at 744, we will affirm the District Court’s judgment of conviction and

sentence and grant his counsel’s motion to withdraw. In addition, pursuant to our Local

Appellate Rule 109.2, we note that the legal issues presented in this appeal lack legal

merit and do not require the filing of a petition for a writ of certiorari with the United

States Supreme Court.

I.     Background

       On May 29, 2003, the government returned a three-count indictment charging

Anderson and others with violations of 18 U.S.C. §§ 371 and 2314. Count I of the

indictment charged that the defendants had violated § 371 by conspiring to violate §

2314, and Counts II and III charged the defendants with substantive violations of § 2314.

The charges stemmed from a number of burglaries committed by Anderson and his

confederates between 2000 and 2002.

       On September 29, 2004, Anderson, represented at that time by a different attorney

than his present counsel, pled guilty to Counts I and II of the indictment in exchange for

the government’s promise to recommend a two-level downward adjustment to his base

offense level at sentencing, and a further promise that the government would not initiate

                                              2
further criminal charges against him in connection with his offenses in this case. On

December 29, 2005, Anderson was provided with new counsel, who has represented him

at sentencing and on appeal.

          On March 15, 2006, Anderson appeared for sentencing and expressed his “deepest

condolences” to the victims of his crimes. (Appellant App. at 30.) The District Court

sentenced him to 109 months imprisonment, three years supervised release and restitution

in the amount of approximately $355,000. On March 24, 2006, Anderson filed this

timely appeal.

II.       Discussion1

          Anderson’s counsel argues in an Anders brief that the only conceivably legitimate

issues – i.e., whether former counsel was ineffective and whether Anderson’s sentence

was unreasonable – are frivolous. Anderson has filed a pro se brief arguing that the

Anders brief is too conclusory to be considered by us. On the merits, he further alleges

that there was not a sufficient factual basis for his guilty plea because Hector Lima, whom

Anderson says is an eyewitness to the burglaries, supposedly informed a private

investigator that he could not identify Anderson. He also contends that his earlier counsel


      1
    We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. As
explained more fully in this opinion, we must review the claims raised in Anderson’s pro
se brief and the claims discussed in the Anders brief to determine whether they are
“wholly frivolous.” Anders, 368 U.S. at 744. Our standard for determining frivolousness
depends upon the standard of review applicable to the potential claims. See United States
v. Schuh, 289 F.3d 968, 974-76 (7th Cir. 2002) (noting that, in Anders context,
withdrawal of guilty plea is reviewed for abuse of discretion while a Rule 11 violation is
reviewed for plain error).
                                               3
was ineffective because he failed to interview Lima prior to the plea hearing, failed to file

a motion to suppress Lima’s statements, and failed to file a motion to withdraw

Anderson’s guilty plea. Finally, Anderson alleges that the warrant used to arrest him

lacked probable cause.

       Under Anders, counsel “should ... advise the court and request permission to

withdraw” if he finds an appeal “to be wholly frivolous[] after a conscientious

examination of it.” 386 U.S. at 744. A counsel’s request to withdraw must be

“accompanied by a brief referring to anything in the record that might arguably support

the appeal.” Id. Thus, when counsel submits an Anders brief, the Court considers “(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).

       Pointing to the brevity of the Anders brief and its omission of the various

arguments raised in his pro se brief, Anderson’s first argument is that the Anders brief

fails to meet the standard set forth in the first prong of the Youla test. However, we do

not reject briefs “in those cases in which frivolousness is patent[,]” United States v.

Marvin, 211 F.3d 778, 781 (3d Cir. 2000), and that is certainly the case here.

       Anderson next argues that there was an insufficient factual basis for his guilty plea

because, after pleading guilty, he “had a premonition of his innocence,” and hired a

private investigator to interview Hector Lima. (Pro Se Br. at 3.) Lima allegedly told the



                                              4
private investigator that he was unable to identify Anderson, and the investigator gave

Anderson an affidavit documenting that conversation.

       We will construe Anderson’s pro se brief liberally. In doing so, it appears that

Anderson is arguing that the investigator’s affidavit shows that the District Court erred in

accepting his guilty plea.2 That argument, is frivolous. A district court may only accept a

guilty plea if “there is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). That

standard does not require, however, that the court be “convinced beyond a reasonable

doubt of a defendant’s guilt.” United States v. Lessner, 498 F.3d 185, 197 (3d Cir. 2007).

Rather, the court only needs to “find sufficient evidence in the record as a whole to justify

a conclusion of guilt.” Id. A “defendant’s own admissions” are enough to supply the

required basis. Id. The record plainly establishes that Anderson admitted in open court to

committing the crimes with which he was charged. Because Anderson admitted to

committing the charged offenses, it was not plain error for the District Court to accept his

guilty plea.

       Next, Anderson claims that his former counsel was ineffective because he did not

seek to question Lima prior to the plea hearing, because he failed to move to suppress

Lima’s statements, and because he failed to move to withdraw the guilty plea.

Anderson’s argument is frivolous because “ineffective assistance of counsel claims ... are



  2
   When an appellant alleges on appeal for the first time that there is no factual basis for
a guilty plea, our review is for plain error. United States v. Lessner, 498 F.3d 185, 196
(3d Cir. 2007).
                                              5
... not entertained on a direct appeal” unless “the record is sufficient to allow

determination of ineffective assistance of counsel.” United States v. McLaughlin, 386

F.3d 547, 555-56 (3d Cir. 2004). Anderson’s claim is made on direct appeal, and the

record does not establish that “an evidentiary hearing to develop the facts is not needed.”

Id. For example, Anderson’s claim turns in part on the veracity of the affidavit

concerning Lima’s alleged statements to the investigator, and, therefore, we cannot

determine the merits of that claim on the current record.

       Next, Anderson argues that the warrant used to arrest him lacked probable cause.

That argument is frivolous because Anderson entered a guilty plea in open court, thereby

waiving his right to make that claim. See Tollet v. Henderson, 411 U.S. 258, 267 (1973)

(noting that a criminal defendant may not, after admitting guilt, “raise independent claims

relating to the deprivation of constitutional rights that occurred prior to the entry of the

guilty plea”).

       Finally, the Anders brief discusses whether “the sentence imposed was improper.”

(Appellant Br. at 4.) As defense counsel notes, the District Court imposed a sentence that

was within the range contemplated by the plea agreement, and our own review of the

record confirms that the District Court did not err in imposing that sentence.3

III.   Conclusion


   3
   Indeed, by signing the plea agreement, Anderson agreed to waive a number of
challenges to his sentence, including, inter alia, any challenge to “the sentencing court’s
authority to sentence under the Sentencing Guidelines in accordance with [the terms of
the plea agreement.]” (Supp. App. at 7 ¶ 12-13.)
                                               6
      For the foregoing reasons, we will affirm the District Court’s judgment of

conviction and sentence, and grant defense counsel’s motion to withdraw.




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