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


3-19-2008

USA v. Robert Brooks
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3917




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                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                __________

                                     No. 06-3917
                                     __________

                          UNITED STATES OF AMERICA

                                          v.

                            ROBERT LLOYD BROOKS,

                                                     Appellant.
                                     __________

                   On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                           (D.C. Civil No. 04-cr-00111-1)
                    District Judge: Honorable Joy Flowers Conti
                                    __________

                     Submitted Under Third Circuit LAR 34.1(a)
                                on January 31, 2008

                Before: RENDELL and CHAGARES, Circuit Judges,
                          and POLLAK,* District Judge.

                               (Filed: March 19, 2008)
                                     __________

                             OPINION OF THE COURT
                                   __________

__________________

   * Honorable Louis H. Pollak, Senior Judge of the United States District Court for the
     Eastern District of Pennsylvania, sitting by designation.
RENDELL, Circuit Judge.

       Appellant Robert L. Brooks (“Brooks”) was charged with one count of possession

of material depicting the sexual exploitation of a minor in violation of 18 U.S.C.

§ 2252(a)(4)(B). He pled guilty on August 5, 2005,1 and, on August 11, 2006, the District

Court sentenced Brooks to 27 months’ imprisonment, to be followed by a three-year term

of supervised release. Brooks was also ordered to pay a special assessment of $100.

Brooks filed a timely notice of appeal.

       Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

requesting permission to withdraw because he is unable to identify any non-frivolous

issues for appeal after a conscientious review of the record. Brooks was given notice of

his counsel’s intent to withdraw and has not filed a pro se brief in response. We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). For the reasons stated

below, we will grant counsel’s motion to withdraw and affirm the District Court’s

judgment of conviction and sentence.

       Evaluation of an Anders brief requires a twofold inquiry: (1) whether counsel has

thoroughly examined the record for appealable issues and has explained why any such

issues are frivolous; 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). Where the




  1
   Prior to this appeal, Brooks did not object to the District Court’s compliance with Rule
11 during his plea hearing, nor did he move to withdraw his plea.

                                             2
Anders brief appears adequate on its face, our review is limited to the portions of the

record identified in the brief, along with any issues raised by an appellant in a pro se

brief. See id. at 301. We conclude that the brief in this case is adequate, and thus, it will

guide our independent review of the record.

       Pursuant to his obligation under the first prong of our analysis, counsel has

identified several potential, but frivolous, issues. By entering an unconditional guilty

plea, Brooks waived all claims for appellate relief with the exception of claims that

(1) the court lacked jurisdiction to accept the plea, (2) the plea was invalid under

applicable statutory and constitutional standards, and (3) the sentence is illegal. See

United States v. Broce, 488 U.S. 563 (1989).

       First, the District Court clearly had jurisdiction to enter a conviction and impose a

sentence for Brooks’s violation of 18 U.S.C. § 2252(a)(4)(B), a federal crime over which

Congress has granted United States district courts jurisdiction. See 18 U.S.C. § 3231.

Although any objection as to improper venue has been waived by Brooks at this point,

venue was indeed proper and is therefore not an appropriate ground for appeal.

       Second, although Brooks’s counsel and the Government have identified several

technical deficiencies in the District Court’s plea colloquy with Brooks, none of the

deficiencies meet the plain error standard that applies to this appeal. Moreover, as Brooks

has declined to file a pro se brief opposing his counsel’s representations, we can hardly

conclude that he has met his burden of establishing a reasonable probability that he would



                                              3
not have entered a guilty plea had the deficiencies been corrected. See United States v.

Dominguez Benitez, 542 U.S. 74, 83 (2004) (“[A] defendant who seeks reversal of his

conviction after a guilty plea, on the ground that the district court committed plain error

under Rule 11, must show a reasonable probability that, but for the error, he would not

have entered the plea.”).

       Finally, as to the lawfulness of Brooks’s sentence, the record is clear that the

District Court carefully analyzed the factors set forth in 18 U.S.C. § 3553(a) and

ultimately imposed a reasonable sentence at the very bottom of the advisory Guidelines

range. The only argument raised by Brooks prior to sentencing that the District Court did

not directly address was his contention that federal sentences for child pornography

offenses are much stiffer than those imposed in state court, thereby yielding unwarranted

sentencing disparities. This argument fails, however, as § 3553(a)(6) focuses on the need

to avoid unwarranted disparities among sentences imposed by federal courts for violations

of federal law, not disparities between state and federal defendants. See United States v.

Clark, 434 F.3d 684, 687 (4th Cir. 2006) (“The sole concern of section 3553(a)(6) is with

sentencing disparities among federal defendants.” (emphasis in original)); United States

v. Jeremiah, 446 F.3d 805, 808 (8th Cir. 2006) (“Unwarranted sentencing disparities

among federal defendants remains the only consideration under § 3553(a)(6)—both

before and after Booker.”); United States v. Branson, 463 F.3d 1110, 1112 (10th Cir.

2006) (“Adjusting federal sentences to conform to those imposed by the states where the



                                              4
offenses occurred would not serve the purposes of § 3553(a)(6), but, rather, would create

disparities within the federal system, which is what § 3553(a)(6) is designed to

discourage.”).

       Our independent review of the record yields no other non-frivolous arguments that

could possibly support an appeal and we are satisfied that all the requirements of

Anders have been met.

       Accordingly, we will AFFIRM the judgment of the District Court and, in a

separate order, GRANT counsel’s motion to withdraw.

_____________




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