                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-30-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1223




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 03-1223


                           UNITED STATES OF AMERICA

                                            v.

                           MERVILLE ADOLPHY CLARKE,
                                            Appellant


                      Appeal from the United States District Court
                             for the District of New Jersey
                           (D.C. Criminal No. 02-cr-00633)
                      District Judge: Honorable Joseph E. Irenas


                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 27, 2004

              Before: RENDELL, FUENTES and SMITH, Circuit Judges.

                               (Filed: September 30, 2004)


                               OPINION OF THE COURT


RENDELL, Circuit Judge.

       Merville Adolphy Clarke was charged with conspiracy to distribute and to possess

with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 846.

He pled guilty on October 8, 2002. Subsequently, he was sentenced to 78 months
imprisonment to be followed by four years of supervised release. Counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), requesting permission to

withdraw because after a conscientious review of the record he is unable to find any non-

frivolous issues for appeal. Clarke was given notice of his counsel’s intent to withdraw

and has not filed a pro se brief. 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 sentence.

       Evaluation of an Anders brief requires a two-fold 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 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, in the absence of a

pro se brief by the appellant, it will guide our independent review of the record.

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

identified a single issue that could arguably support an appeal: whether the District Court

erred in not applying a downward adjustment to Clarke’s 78-month sentence pursuant to

U.S.S.G. § 3B1.2(b) based on his minor role in the offense. Because counsel did not raise

this issue at sentencing, our review is limited to plain error. See Fed. R. Crim. P. 52(b).



                                              2
       Under § 3B1.2 of the Sentencing Guidelines, a defendant’s offense level may be

decreased by four levels where the defendant is “a minimal participant,” by two levels

where the defendant is a “minor participant,” or by three levels where the defendant’s

participation is somewhere in-between. In determining whether a defendant was a

minimal or minor participant in the offense, a district court must consider the defendant’s

relative culpability as compared with the other participants. United States v. Isaza-

Zapata, 148 F.3d 236, 242 (3d Cir. 1998). According to the comments of the Sentencing

Guidelines, a minor participant is “any participant who is less culpable than most other

participants, but whose role could not be described as minimal.” U.S. Sentencing

Guidelines Manual § 3B1.2, cmt. n.5 (2001). A minimal participant is one “plainly

among the least culpable of those involved in the conduct of a group.” Id. at cmt. n.4

(noting the downward adjustment for a minimal participant is intended to be used

infrequently). Furthermore, under our case law, we consider the following factors in

determining whether the defendant was a minor participant: “(1) the defendant’s

awareness of the nature and scope of the criminal enterprise; (2) the nature of the

defendant’s relationship to the other participants; and (3) the importance of the

defendant’s actions to the success of the venture.” United States v. Brown, 250 F.3d 811,

819 (3d Cir. 2001) (citing United States v. Headley, 923 F.2d 1079, 1084 (3d Cir. 1991)).

       Here, for essentially all the reasons counsel points out, we agree that Clarke was

simply not a minor participant. The record clearly shows that Clarke actively recruited



                                             3
and engaged another in the conspiracy and that he was fully aware of the nature and scope

of the criminal enterprise insofar as he knew what he was transporting, where the

narcotics had come from, and to whom he was to deliver the package. Further, his role as

a mule was essential to the ultimate success of the conspiracy. For all the above reasons,

failure to apply a downward adjustment under § 3B1.2 of the Sentencing Guidelines was

not plain error and would not support an appeal.

       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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