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


9-15-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2916




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NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                    Case No: 06-2916

                            UNITED STATES OF AMERICA

                                                 v.

                              KURTIS BARNES, a/k/a Gotti,

                                              Appellant


                    On Appeal from the United States District Court
                               for the District of New Jersey
                              District Court No. 05-CR-557
                   District Judge: The Honorable Garrett E. Brown, Jr.


                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  September 12, 2008

                                Before: MCKEE, SMITH,
                                and WEIS, Circuit Judges

                               (Filed: September 15, 2008 )


                                         OPINION


SMITH, Circuit Judge.

       On July 21, 2005, Kurtis Barnes was charged with one count of knowingly and

intentionally conspiring to distribute at least 100 grams of heroin in violation of 21 U.S.C.

§§ 846, 841(a)(1) and (b)(1)(B), and six counts of knowingly and intentionally
distributing heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). On October 18,

2005, Barnes entered a plea of guilty to the § 846 conspiracy offense, pursuant to a plea

agreement.

       Barnes subsequently sought, pro se, to withdraw his plea. At a hearing on March

7, 2006, Barnes, while represented by counsel, withdrew his Motion to Withdraw his

guilty plea. Nevertheless, on April 20, 2006, in yet another hearing, Barnes again

asserted his desire to withdraw his plea and proceed to trial because, according to Barnes,

he had not been provided an opportunity to inspect certain evidence against him (video

surveillance tapes). The Court adjourned the hearing, allowing for Barnes to have an

opportunity to view the evidence.

       Apparently Barnes backed down from his request for a trial because his sentencing

hearing was held on May 24, 2006. At that time, the government moved for a downward

departure on behalf of Barnes for his substantial cooperation with ongoing government

investigations. The District Court agreed that Barnes’s cooperation was “very

substantial” and sentenced Barnes to a term of 175 months of imprisonment, 5 years of

supervised release, and a $3,000 fine—a punishment that constituted a three-level

downward departure from the guideline range of 262 to 327 months. This appeal

followed.1



   1
     The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. Appellate
jurisdiction exists under 18 U.S.C. § 3742(a). See United States v. Cooper, 437 F.3d 324,
327–28 (3d Cir. 2006).

                                             2
       Barnes contends that the District Court failed to give sufficient weight to the extent

of his cooperation with the government, and as such, departed downward an insufficient

amount in sentencing. Barnes’s counsel filed an appellate brief raising this issue and

simultaneously moved to withdraw pursuant to Anders v. California, 386 U.S. 738

(1967). In Anders, the Supreme Court stated that the “constitutional requirement of

substantial equality and fair process” means that appellate counsel must act as an

advocate for the defendant. 386 U.S. at 744. Thus, counsel’s

              role as advocate requires that he support his client’s appeal to
              the best of his ability. Of course, 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. That request must, however, be accompanied by a
              brief referring to anything in the record that might arguably
              support the appeal.

Id. In United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001), we explained that an

Anders brief must demonstrate that counsel has “thoroughly examined the record in

search of appealable issues,” and it must “explain why the issues are frivolous.”

Accordingly, our inquiry is twofold: (1) whether counsel adequately fulfilled the

requirements of Anders; and (2) “whether an independent review of the record presents

any nonfrivolous issues.” Id. (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir.

2000)); see also Anders, 386 U.S. at 744 (explaining that the court must proceed, “after a

full examination of all the proceedings, to decide whether the case is wholly frivolous.”).

       We are satisfied that counsel thoroughly examined the record for issues of



                                             3
arguable merit and fulfilled the requirements of Anders. Counsel found no non-frivolous

issues for appeal. Counsel appropriately recognized that discretionary downward

departures under the Guidelines are not reviewable absent legal error. See United States

v. Cooper, 437 F.3d 324, 332–33 (3d Cir. 2006) (citing United States v. Khalil, 132 F.3d

897, 898 (3d Cir. 1997) (“[W]e could not possibly have jurisdiction to hear an appeal by a

defendant where there has been some exercise of the court’s discretion to depart

downward.”)). Barnes raises no legal question with respect to the downward departure of

his sentence but challenges only the extent of the District Court’s exercise of discretion.

See Khalil, 132 F.3d at 898. Therefore, we decline to review Barnes’s appeal, and as

such, agree that this claim is frivolous.

       In addition, our own independent review of the record fails to reveal any

nonfrivolous issues for appeal. Accordingly, we will grant counsel’s motion to withdraw

pursuant to Anders and affirm the judgment of the District Court. We certify that the

issues presented in the appeal lack legal merit and thus do not require the filing of a

petition for writ of certiorari with the Supreme Court. 3d Cir. L.A.R. 109.2(b).




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