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


6-9-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5221




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 06-5221


                           UNITED STATES OF AMERICA

                                           v.

                                   TRACY CLARK

                                                Appellant



                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                       (D.C. Criminal Action No. 01-cr-00428-2)
                       District Judge: Honorable Robert F. Kelly


                      Submitted Under Third Circuit LAR 34.1(a)
                                    June 9, 2008

           Before: AMBRO, CHAGARES and GREENBERG, Circuit Judges

                              (Opinion filed June 9, 2008)



                                       OPINION


AMBRO, Circuit Judge

      In June 2003, appellant Tracy Clark was convicted by a jury of possession of a

firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He was
ultimately sentenced to a 235-month term of imprisonment and a five-year term of

supervised release. Clark appealed and his counsel, Christopher D. Warren, Esq., filed a

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

For the reasons set forth below, we grant that motion and affirm the sentence imposed by

the District Court.1

       Because we write solely for the parties, we recite only those facts necessary to our

decision. In December 1999, Philadelphia police officers executed a search warrant on an

apartment, whereupon they apprehended Clark with a loaded .45 caliber semi-automatic

firearm. He was charged with being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1), and the grand jury later returned a superseding indictment charging

that Clark also violated 18 U.S.C. § 924(e). He thereafter pled guilty.

       Clark later filed, however, a pro se motion to withdraw the guilty plea, which the

District Court denied. The Court appointed counsel for Clark, and his counsel filed a

second motion to withdraw the guilty plea, which the Court granted in March 2003. The

case went to trial, and Clark was convicted by a jury in June 2003. At sentencing, the

Court determined that Clark’s offense level was 33 and his Criminal History Category

was VI, resulting in an advisory Guidelines range of 235–293 months. The District Court

found that Clark was a danger to the community and sentenced him at the top of the



   1
    The District Court exercised jurisdiction over this matter pursuant to 18 U.S.C.
§ 3231. We have jurisdiction over this appeal pursuant to 18 U.S.C. § 3742(a) and 28
U.S.C. § 1291. See United States v. Cooper, 437 F.3d 324, 327–28 (3d Cir. 2006).

                                             2
Guidelines range to a 293-month term of imprisonment and a five-year term of supervised

release. In October 2004, we affirmed the conviction and sentence. The Supreme Court

denied certiorari in late January 2005.

       In January 2006, Clark filed a motion under 28 U.S.C. § 2255 seeking to attack

collaterally his conviction and sentence on the grounds that his counsel had been

ineffective in advising him to withdraw his guilty plea and in failing to seek resentencing

under United States v. Booker, 543 U.S. 220 (2005). The District Court rejected the first

ineffective assistance claim, and, without considering the merits of the second claim,

granted Clark’s request for resentencing under Booker because his judgment was not final

at the time Booker was announced.2 See id. at 268.3

       At the resentencing hearing, the District Court calculated Clark’s Guidelines range



   2
     The Supreme Court handed down its decision in Booker on January 12, 2005 and
denied Clark’s petition for certiorari on January 25, 2005.
   3
     The District Court’s decision to grant Booker resentencing did not deal with whether
Clark’s counsel had been ineffective. Clark asserted that his counsel was ineffective in
failing to file a letter under Federal Rule of Appellate Procedure 28(j) informing the
Supreme Court of its own decision in Booker. This can hardly serve as the basis for an
ineffectiveness claim because the Federal Rules of Appellate Procedure apply to the
Courts of Appeals and not the Supreme Court. The District Court may have implicitly
rested its decision on Clark’s counsel’s failure to raise the Booker resentencing issue
before the Supreme Court by supplementing the petition for certiorari pursuant to
Supreme Court Rule 15.8, which states in pertinent part that “[a]ny party may file a
supplemental brief at any time while a petition for a writ of certiorari is pending, calling
attention to new cases, new legislation, or other intervening matter not available at the
time of the party’s last filing.” In any event, we need not speculate any further as to why
the District Court granted resentencing because the Government did not challenge that
decision.

                                             3
as it had at the initial sentencing. Neither party made any motions for downward

departure. Arguing based on the 18 U.S.C. § 3553(a) factors, Clark’s attorney contended

that Clark should receive a downward variance because of the effect of incarceration on

his children. The Government responded that no downward variance was warranted

because of Clark’s significant criminal history. The District Court considered the

arguments of both parties and ultimately imposed a 235-month term of

imprisonment—which was at the bottom of the advisory Guidelines range—and a five-

year term of supervised release.

       After his resentencing, Clark filed an untimely pro se notice of appeal in this Court

and a motion for an extension of the time to appeal in the District Court. The District

Court granted the motion for an extension, retroactively rendering Clark’s notice of

appeal timely. His counsel then filed the Anders motion seeking to withdraw as counsel.

       Under Anders, “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.” 386 U.S. at 744. The motion must be accompanied by “a brief referring to

anything in the record that might arguably support the appeal.” Id. “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.” United States v. Youla, 241 F.3d 296, 301 (3d Cir. 2001). A copy

of counsel’s brief must be furnished to the appellant, who must be given time to “raise

any points that he chooses” in a pro se brief. Anders, 386 U.S. at 744; see also Third

                                             4
Circuit LAR 109.2(a).

       Our review of an Anders motion is two-fold. First, we must satisfy ourselves that

“counsel adequately fulfilled the rule’s requirements.” Youla, 241 F.3d at 300. Next, we

must determine whether “an independent review of the record presents any nonfrivolous

issues.” Id. Where, as here, the Anders brief is adequate on its face, we confine our

independent review to those issues raised in the Anders brief and the appellant’s pro se

brief. Id. at 301.

       Clark’s counsel has filed a brief that easily complies with Anders. He thoroughly

described the process of Clark’s resentencing and concluded that there are no meritorious

issues for appeal. Based on our independent review of the record, we agree. In

resentencing Clark, the District Court followed the steps our Court outlined in United

States v. Gunter, 462 F.3d 237 (3d Cir. 2006), and ultimately imposed a within-

Guidelines sentence that satisfies reasonableness review.

       In his pro se brief, Clark raises the claim that his counsel was ineffective for

failing to contest the District Court’s determination that his prior convictions qualified as

offenses under the Armed Career Criminal Act, 18 U.S.C. § 924(e), in light of Shepard v.

United States, 544 U.S. 13 (2005). However, we decline to address his ineffective

assistance claim at this time because those claims are “best decided in the first instance in

a collateral action” rather than on direct appeal. United States v. Thornton, 327 F.3d 268,

272 (3d Cir. 2003).

       Because there are no nonfrivolous issues for appeal, Clark’s sentence is hereby

                                              5
affirmed, and counsel for Clark is granted leave to withdraw.




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