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


6-18-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2656




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                  _______________

                                    NO. 03-2656
                                  _______________

                          UNITED STATES OF AMERICA

                                          v.

                    BILLY WASHINGTON aka BILLY JACOBS

                             WILLIAM WASHINGTON,
                                             Appellant

                                  _______________

                     Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                 No. 93-CR-00138-15
                         District Judge: James McGirr Kelly
                                   _______________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   May 28, 2004

               BEFORE: RENDELL and COW EN, Circuit Judges, and
                     SCHWARZER,* Senior District Judge

                           (Opinion Filed: June 18, 2004)




      *
       The Honorable William W Schwarzer, Senior United States District Judge for the
Northern District of California, sitting by designation.

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                                _______________________

                                OPINION OF THE COURT
                                _______________________

SCHW ARZER, Senior District Judge.

              William Washington timely appeals an order revoking his supervised

release and imposing a nine-month term of imprisonment and a new term of supervised

release. His counsel has filed an Anders brief asserting that Washington’s appeal raises

no nonfrivolous issues and moving to withdraw. The district court had jurisdiction

pursuant to 18 U.S.C. § 3231 and we have jurisdiction pursuant to 18 U.S.C. § 3742(a)

and 28 U.S.C. § 1291. We will dismiss the appeal and grant the motion.

                     FACTUAL AND PROCEDURAL HISTORY

              Washington’s probation officer alleged six violations of the conditions of

Washington’s supervised release in his report and amended report. First, the report stated

that police had taken Washington into custody on January 5, 2003, and that Washington

later lied about this event to the probation officer in violation of Condition #3 of his

supervised release. Second, the report alleged that Washington had failed to notify the

probation officer of his change of address. Third, the report stated that Washington had

submitted urine samples that tested positive for cocaine. Fourth, the report charged that

Washington had associated with people who were engaged in criminal activity or known

to be felons. Fifth, the amended report alleged that Washington had committed a crime

(assault) while on probation. Sixth, the amended report stated that Washington had

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submitted other urine samples that tested positive for cocaine.

              Washington admitted to having tested positive for cocaine use. He

contested the other allegations. After hearing testimony by the probation officer, the

court found that Washington had lied to the officer when he denied being apprehended by

the police.

              The court found Washington guilty of three violations of the terms of his

supervised release: the two drug-test failures, and the lie to the probation officer. Each

offense was a type “C” violation under U.S.S.G. § 7B1.4, so each carried a possible term

of imprisonment of three to nine months. The court imposed a sentence of nine months in

prison, and added a new term of supervised release.

                                        ANALYSIS

              Third Circuit Local Appellate Rule 109.2(a) provides that “[w]here, upon

review of the district court record, trial counsel is persuaded that the appeal presents no

issue of even arguable merit, trial counsel may file a motion to withdraw and supporting

brief pursuant to Anders v. California, [386 U.S. 738 (1967)].” When considering an

Anders motion, we must “decide whether the case is wholly frivolous.” United States v.

Youla, 241 F.3d 296, 299 (3d Cir. 2001). Our inquiry is “twofold: (1) whether counsel

adequately fulfilled [Rule 109.2(a)]’s requirements; and (2) whether an independent

review of the record presents any nonfrivolous issues.” Id. at 300.

              “The duties of counsel when preparing an Anders brief are (1) to satisfy the



                                              3
court that counsel has thoroughly examined the record in search of appealable issues, and

(2) to explain why the issues are frivolous.” Id. “Counsel need not raise and reject every

possible claim . . . [h]owever, at a minimum, he or she must” conscientiously examine

the record for appellate issues. Id.

              Here, counsel’s brief is inadequate. Like the brief we found inadequate in

Youla, id. at 300, counsel’s brief is only two pages in length and contains no citations to

case law. The analysis is confined to the propriety of the district court’s determination

that Washington lied to the probation officer. Counsel makes essentially no attempt to

discuss potential errors in the findings about the failed drug tests, and makes no attempt to

discuss possible issues concerning the sentence imposed by the court.

              Nonetheless, we dismiss Washington’s appeal because it is patently

frivolous. See id. at 300 (stating that we should accept inadequate Anders briefs “in those

cases in which frivolousness is patent”). We are guided in our review of the record by

Washington’s informal pro se brief. See id. at 301. Washington raises several issues, but

all are patently frivolous.

              A.      Association With Know n Criminals

              Washington attacks the probation officer’s charge that he associated with

known criminals. As the district court did not find Washington guilty of this violation,

the challenge is moot.




                                              4
               B.     Factual Basis for Finding that Washington
                      Lied to His Probation Officer

               Washington also argues that the court improperly found that he lied to his

probation officer about being detained by the police. He argues that he thought he could

report the incident in a monthly report and thus did not have to discuss it with the

probation officer. But the probation officer testified that he asked Washington a direct

question about whether he had been detained, which Washington answered in the

negative. Because even Washington admits that he was detained, his response was

clearly false and the district court’s finding is not subject to attack.

               C.     Abstinence from Drug Use

               Washington also contends that other than the times he tested positive for

cocaine use, he abstained from using drugs. This assertion has no legal relevance; he was

reincarcerated only as a result of the positive drug tests.

               D.     Ineffective Assistance of Counsel

               Washington next asserts that his counsel provided ineffective assistance in

the district court. Because we do not consider ineffective assistance of counsel claims on

direct review, United States v. Thornton, 327 F.3d 268, 271-72 (3d Cir. 2003), this

argument is patently frivolous.

               E.     Imposition of Imprisonment Rather Than Drug Abuse
                      Treatment

               Washington further argues that the court erred because it did not consider



                                                5
whether to place him in drug treatment rather than prison upon finding that he failed drug

tests. 18 U.S.C. § 3583(g) generally mandates that courts impose a prison term for drug-

related probation violations. But Washington notes that 18 U.S.C. § 3583(d) states:

              The court shall consider whether the availability of
              appropriate substance abuse treatment programs, or an
              individual’s current or past participation in such programs,
              warrants an exception in accordance with United States
              Sentencing Commission guidelines from the rule of section
              3583(g) when considering any action against a defendant who
              fails a drug test.

And he points to United States v. Pierce, 132 F.3d 1207 (8th Cir. 1997), where the court

observed that a district court has discretion under § 3583(d) to impose treatment rather

than imprisonment, and held that a failure to recognize that discretion requires a remand

for re-sentencing. Id. at 1208-09. Washington asserts that the district court here did not

recognize its discretion.

              Regardless of the merits of this argument, the issue is frivolous because it is

no longer cognizable by a federal court. Washington has already been released from

prison. As the imposition of prison rather than drug treatment has no apparent ongoing

collateral consequences, the issue is moot. See United States v. Kissinger, 309 F.3d 179,

181-82 (3d Cir. 2002) (holding that where an appellant has already served his sentence,

and the sentence has no collateral consequences, an appeal of the terms of the sentence is

moot).




                                             6
              F.     Lack of Grand Jury Indictment

              Finally, Washington argues that his nine-month prison sentence violated the

Fifth Amendment because he was not indicted by a grand jury. But “[v]iolation of

supervised release is a separate offense” from the underlying crime, United States v.

Blackston, 940 F.2d 877, 881 n.7 (3d Cir. 1991), and the Fifth Amendment requires the

federal government to proceed by indictment only when charging someone with “a

capital, or otherwise infamous crime.” U.S. C ONST. amend. V. A crime is not infamous

if it is not punishable by imprisonment in a penitentiary, Green v. United States, 356 U.S.

165, 183 (1958), and, under 18 U. S. C. § 4083, no one may be imprisoned in a

penitentiary unless their offense is punishable by more than a year in prison.

Washington’s offenses carried maximum prison terms of nine months, so they were not

infamous crimes. The Fifth Amendment’s grand jury provisions are not implicated.

                                     CONCLUSION

              For the reasons stated above, Washington’s appeal will be DISMISSED

pursuant to Third Circuit Local Appellate Rule 109.2(a) and the motion to withdraw is

GRANTED.




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