05-6919-cr
U.S. v. Hall



                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT
                                    _____________________

                                        August Term, 2006
(Submitted December 29, 2006                                            Decided: August 30, 2007)
                                      Docket No. 05-6919-cr

                                   _______________________

                               UNITED STATES OF AMERICA,
                                                   Appellee,
                                          -v.-

                                          CARL HALL,
                                                        Defendant-Appellant.
                                   _______________________

BEFORE:                CALABRESI, RAGGI, HALL, Circuit Judges.

                                   _______________________

         Defendant appeals from an amended judgment of conviction and below-Guidelines

sentence of the United States District Court for the Eastern District of New York. Defense

counsel filed an Anders motion to be relieved as counsel and the Government filed a motion for

summary affirmance. We affirm the district court’s sentence but remand for the court to amend

the written judgment to comply with 18 U.S.C. § 3553(c)(2). We deny defense counsel’s motion

to be relieved as counsel without prejudice to renewal following the district court’s disposition

on remand; consideration of the Government’s motion to affirm is deferred until renewed

consideration of the motion to be relieved.
                                   _______________________

               GARY G. BECKER, New York, NY, for Defendant-Appellant Carl Hall,

               JESSICA A. MASELLA , CELESTE L. KOELEVELD , Assistant United
               States Attorneys (Michael J. Garcia, United States Attorney for the
               Southern District of New York, Boyd M. Johnson, Assistant
               United States Attorney, on the brief), New York, NY, for Appellee.
                                  _______________________

PER CURIAM:

       After a remand for resentencing pursuant to United States v. Crosby, 397 F.3d 103 (2d

Cir. 2005), the district judge gave an oral explanation that adequately explained the below-

Guidelines sentence imposed, but the court did not include a written statement of reasons for the

sentence in the written order of judgment as required by 18 U.S.C. § 3553(c)(2).1 Hall filed a

notice of appeal. Assigned counsel thereafter submitted a brief pursuant to Anders v. California,

396 U.S. 738 (1967), seeking to be relieved as counsel. The Government, in turn, concurred that

the conviction should be summarily affirmed. We affirm the sentence but remand to the district

court for entry of a written statement of reasons for imposing the non-Guidelines sentence

pursuant to section 3553(c)(2), and we decline counsel’s motion to be relieved from

representation until after the court has complied with this requirement.




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        Section 3553(c)(2) provides that in cases where the sentence is “not of the kind, or is
outside the range” prescribed by the Sentencing Guidelines, the district court must not only state
the “specific reason for the imposition of a sentence difference from that described” in the
Guidelines, but must also state such reason or reasons “with specificity in the written order of
judgment and commitment, except to the extent that the court relies upon statements received in
camera in accordance with Federal Rule of Criminal Procedure 32.” 18 U.S.C. § 3553(c)(2).

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                                           I. Background

       After pleading guilty to racketeering and to conspiracies to commit murder and to

distribute heroin and cocaine, Defendant-Appellant Carl Hall was originally sentenced to life

imprisonment as required by the then-mandatory Sentencing Guidelines. Following a Crosby

remand, defense counsel urged the sentencing court to resentence Hall to a non-Guidelines

sentence substantially lower than the sentence of life imprisonment previously imposed. The

sentencing judge ultimately sentenced Hall to a term of 40 years’ imprisonment and gave an

adequate oral explanation for imposing the non-Guidelines sentence. The judge, however, failed

to include a written statement of reasons in the amended judgment. At Hall’s request, defense

counsel filed a Notice of Appeal in December 2005. In July 2006, Hall’s attorney filed an

Anders motion to be relieved as counsel.

       Counsel’s Anders brief noted the district court’s failure to comply with the

section 3553(c)(2) requirement. Counsel asserted, however, that because the court had stated the

reasons for the departure orally and “since the sentence imposed was well below the Guidelines

range,” any error in the court’s failure to articulate the reasons for the non-Guidelines sentence in

the written judgment was “surely harmless.” In counsel’s view, it would be frivolous to claim

that the district court’s failure to comply with section 3553(c)(2) was not harmless. Agreeing

that there were no non-frivolous issues presented for appeal, the Government moved to have the

conviction summarily affirmed.

       This Court has not yet decided in the context of appeals to be disposed of by Anders

motions whether the absence of a written statement set forth in the order of judgment and

commitment explaining the imposition of a non-Guideline sentence (the “statement of reasons”)


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precludes us, notwithstanding an adequate oral explanation, from granting the Anders motion and

summarily affirming the judgment. Accordingly, we requested that the parties and an amicus

curiae file supplemental briefs addressing the issue of whether this Court may grant appellate

counsel’s Anders motion under such circumstances. For the reasons that follow, we hold that in

appeals subject to Anders motions, a written statement of reasons required by 18 U.S.C. §

3553(c)(2) must accompany the judgment of conviction, and counsel will not be permitted to

withdraw pursuant to Anders until such statement has been made part of the record and

considered as part of the Anders analysis.

                                          II. Discussion

                                    A. 18 U.S.C. § 3553(c)(2)

       In United States v. Goffi, 446 F.3d 319 (2d Cir. 2006), which concerned a direct appeal of

a sentence not involving an Anders motion, this Court stated that in cases in which oral

explanations are perfectly adequate but written explanations are not provided, “it is the better

course, while affirming the substance of the judgment of the district court, to return the case to

the district court for the sole purpose of amending its written judgment to comply with section

3553(c)(2).” Id. at 322 n.2. Additionally, in United States v. Jones, 460 F.3d 191, 197 (2d Cir.

2006), we explained the reasons for our holding in Goffi in spite of our prior decision in United

States v. Fuller, 426 F.3d 556, 567 (2d Cir. 2005) (holding that noncompliance with subsection

3553(c)(2) did not require a remand). As we stated in Jones, Fuller was a pre-Booker case in

which the sentence, though a departure from the applicable guideline, was imposed under the

mandatory Guidelines regime. Jones, 460 F.3d at 197; see also United States v. Rattoballi, 452

F.3d 127, 138-39 (2d Cir. 2006) (distinguishing Fuller as being a “departure” sentence under the


                                                 4
mandatory Guidelines, as opposed to non-Guidelines sentence outside the advisory-only

Guidelines regime). In Jones, we concluded that reliance on Goffi as a basis for remanding to

allow a district court to comply with the written judgment requirement of section 3553(c)(2) was

appropriate after Booker because of the “broader discretion available to sentencing judges under

the advisory Guidelines regime of Booker.” Jones, 460 F.3d at 197. Because sentencing judges

now possess this broader discretion, “it will generally be helpful to the reviewing court (and to

agencies such as the Sentencing Commission and the Bureau of Prisons) to have the judge’s

statement of reasons for a sentence outside an applicable guideline conveniently set forth in the

written order of judgment and commitment.” Id.

       In addition, we note that while a remand to the district court solely for the purpose of

complying with section 3553(c)(2) will not result in any change in the conviction or sentence, the

Government, the defendant, and amici in this case acknowledge that a written statement of

reasons is beneficial because the Bureau of Prisons consults the written judgment of conviction,

which may contain information relevant to a defendant’s service of sentence. Cf. Rita v. United

States, 127 S. Ct. 2456, 2483 (2007) (Scalia, J., concurring) (noting in reference to section

3553(c)(2) that by “ensuring that district courts give reasons for their sentences, and more

specific reasons when they decline to follow the advisory Guidelines range, appellate courts . . .

enable the Sentencing Commission to perform its function of revising the Guidelines to reflect

the desirable sentencing practices of the district courts. And as that occurs, district courts will

have less reason to depart from the Commission’s recommendations, leading to more sentencing

uniformity.” (internal citations omitted)). That is, although we conclude from counsel’s briefing

that there are no other issues that merit further examination on appeal, we cannot conclude that


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the absence of a written statement of reasons will not have consequences for the defendant, some

of which may be negative, in his future relationship with the Bureau of Prisons as he proceeds to

serve his sentence. For these reasons, where appellate counsel is seeking to demonstrate that

there are no non-frivolous issues that would merit attention on appeal, counsel must confirm that

the district court has provided the written statement of reasons required by section 3553(c)(2).

Because we would be speculating to say that the absence of the written statement would have no

effect, we must remand this case to the district court for the sole purpose of complying with

section 3553(c)(2).

       In requiring sentencing judges to include a statement of reasons in the written judgment

under section 3553(c)(2), as we do here, we are not suggesting that judges must denote every fact

discussed in the sentencing colloquy. Indeed, nothing stated in this opinion should be interpreted

to “require the district court to utter any specific incantation.” Rattoballi, 452 F.3d at 138 (“[A]

simple, fact-specific statement explaining why the Guidelines range did not account for a specific

factor or factors under § 3553(a) should suffice . . . .” for the purposes of section 3553(c)(2)).

We do not understand Congress’s intent in enacting section 3553(c)(2) to have been to divert

district courts’ attention from conducting a thoughtful, on-the-record, face-to-face sentencing

exchange with criminal defendants to obsessing over the inclusion of every material sentencing

fact in a written order of judgment. We are, moreover, mindful that the circulation through the

Bureau of Prisons of a detailed statement of the facts underlying some reasons can present

particular concerns, as for example, when a statement references sensitive information about

crime victims, the defendant, or members of his family. Thus, we reiterate that the statutory

requirement for specific reasons does not necessarily require an exhaustive statement of facts.


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Indeed, a simple summary of facts should generally suffice for purposes of Bureau of Prisons

review. In conducting our own appellate review of the reasonableness of the sentence, we can, of

course, look beyond the reasons stated in the written judgment to consider, as we have in this

case, a district court’s oral statements of reasons at sentencing as well as the full record of

proceedings.

                                         B. Anders Motion

       Under Anders, court-appointed appellate counsel may move to be relieved from his or her

duties if “counsel is convinced, after conscientious investigation, that the appeal is frivolous.”

United States v. Williams, 475 F.3d 468, 478 (2d Cir. 2007) (quoting Anders, 386 U.S. at 741).

To support an Anders motion, “defense counsel must supply a brief identifying by record

references any issues that have at least arguable merit supported by legal authority, and explain

why they are frivolous.” United States v. Arrous, 320 F.3d 355, 358 (2d Cir. 2003). This Court

will not grant an Anders motion unless it is satisfied that (1) “counsel has diligently searched the

record for any arguably meritorious issue in support of his client’s appeal,” and (2) “defense

counsel’s declaration that the appeal would be frivolous is, in fact, legally correct.” United States

v. Burnett, 989 F.2d 100, 104 (2d Cir. 1993).

       Anders recognizes the limited exception to indigent defendants’ well-established right to

the effective assistance of counsel on direct appeals from convictions. Burnett, 989 F.2d at 103-

04 (citing Douglas v. California, 372 U.S. 353 (1963)). Accordingly, appellate counsel’s Anders

brief performs a dual function: it assists the appellate court in determining whether the appeal is

indeed so frivolous that counsel should be permitted to withdraw and ensures that indigent




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criminal appellants have received effective assistance of counsel in dutifully pursuing the appeal.

McCoy v. Court of Appeals of Wis., 486 U.S. 429, 439 (1988).

       Because we have now concluded that judgments of conviction lacking a written statement

of reasons for a non-Guidelines departure required by section 3553(c)(2) may be of detriment to

the defendant, we cannot say with certainty that an appeal on this issue would necessarily be

frivolous. While this Court found that parties may waive the section 3553(c)(2) requirement in a

non-Anders case, United States v. Pereira, 465 F.3d 515, 524 (2d Cir. 2006) (holding section

3553(c)(2) issue waived where defendant’s attorney stated at oral argument that if the Court

found the district court’s oral explanation of reasons for imposing non-Guidelines sentence

sufficient, defendant waived any relief under section 3553(c)(2) to which he might otherwise

have been entitled), waiver of a non-frivolous issue is inapposite in the context of an

Anders motion.

       The standard for advancing an Anders motion is that counsel has been unable to discern

any “arguably meritorious issue[s]” in support of the client’s appeal; the standard for granting an

Anders motion is that this declaration is “in fact, legally correct.” Burnett, 989 F.2d at 103-04.

Because the premise of an Anders motion is that the appeal from the judgment of conviction

involves no arguably meritorious, non-frivolous issues, counsel’s responsibility in the

Anders brief is to outline all possibly non-frivolous issues and address why those claims are not

required to be advanced on appeal. It would be antithetical to the purposes of an Anders brief if

counsel could identify meritorious issues that might be raised and then waive them. Allowing

such a waiver would call into question the very purpose of the Anders motion because the

resulting process would not ensure that indigent clients have received the effective assistance of


                                                 8
counsel on appeal, nor would it assist the appellate court in reviewing the appeal. See McCoy,

486 U.S. at 439. Where a reviewing court concludes that a meritorious issue remains in a case in

which an Anders motion has been made, the remedy is for the Court to deny the motion to

withdraw or grant the motion and appoint new counsel. Permitting appellate counsel to waive a

meritorious issue in an Anders brief is not an option.

       The Anders brief in the instant matter is satisfactory with regard to the issues it addresses.

See Arrous, 320 F.3d at 358 (discussing what is required in Anders briefs). Moreover, it has

identified the specific issue—the absence of the written statement of reasons—which is the

subject of the first part of this opinion. Because we now make clear that in the context of an

Anders review counsel may not waive the written statement requirement of section 3553(c)(2)

even though the district court gave adequate oral explanations for the sentence, we must deny

counsel’s Anders motion at this juncture. Having counsel continue to represent his client on

remand will ensure that the defendant has the benefit of counsel to review the written statement

of reasons once it is filed and ensure that no meritorious issues that arise in connection with that

written entry are overlooked. See United States v. Ibrahim, 62 F.3d 72, 74 (2d Cir. 1995)

(directing Anders counsel to address validity of plea). Following the district court’s entry on

remand of the written statement of reasons, the clerk of the district court will report that entry to

the clerk of this Court, and the present appeal will be reinstated. Within ten days thereof, counsel

for Defendant will either withdraw his Anders motion and request a briefing schedule or will

renew and supplement his Anders motion. If renewing his Anders motion, counsel may proceed

by supplemental letter brief making reference to his original Anders brief and adding such further




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discussion as may be necessary. This panel will retain jurisdiction of this appeal after the

disposition on remand.

                                         III. Conclusion

       We affirm the sentence imposed. We remand to the district court with instructions that it

amend the written judgment to comply with 18 U.S.C. § 3553(c)(2). Hall’s motion for new

counsel is denied. Defense counsel’s motion to be relieved as counsel is denied without

prejudice to it being renewed following disposition on remand, and consideration of the

government’s motion to affirm the judgment is deferred until renewed consideration of the

motion to be relieved.




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