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


2-6-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1341




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 07-1341
                                     ____________

                           UNITED STATES OF AMERICA

                                             v.

                                JAMES C. BELCHER,

                                           Appellant
                                     ____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                (D.C. No. 06-cr-00154)
                         District Judge: William W. Caldwell
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 11, 2008

          Before: FISHER, HARDIMAN and STAPLETON, Circuit Judges.

                                (Filed: February 6, 2008)
                                     ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      This appeal arises out of James Belcher’s guilty plea to possession of child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and the District Court’s

subsequent sentence of 78 months imprisonment. After filing a timely notice of appeal,
Belcher’s counsel filed a brief and motion to withdraw representation pursuant to Anders

v. California, 386 U.S. 738 (1967). For the reasons that follow, we will grant counsel’s

Anders motion and affirm the District Court’s judgment of sentence.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       On June 21, 2006, Belcher pleaded guilty to one count of possession of child

pornography. The United States Probation Office prepared a Presentence Investigation

Report (“PSR”), which the District Court adopted without any changes. Utilizing the

applicable United States Sentencing Guidelines (“Guidelines”), it determined that the

Total Offense Level was 27. The base offense level for a violation of 18 U.S.C.

§ 2252A(a)(5)(B) is 18, and the specific offense characteristics, including the age of the

children involved in the films, the use of a computer, and the number of images,

necessitated a 9-level increase.1 Additionally, Belcher’s prior conviction for invasion of

privacy placed him in Criminal History Category II. Based on these calculations, the

advisory Guidelines range was 78 to 97 months imprisonment. Accordingly, the District


       1
       The PSR did not recommend a downward adjustment for Acceptance of
Responsibility based on numerous comments Belcher made that minimized his level of
responsibility, including a statement that viewing child pornography should not be illegal.
Although Belcher initially objected to this omission, he did not object at the sentencing
hearing.

                                              2
Court imposed a 78-month sentence. It also imposed a fine and special assessment

totaling $600, and supervised release for a term of life.

       Belcher filed a timely notice of appeal. Concluding that there were no

nonfrivolous issues to appeal, Belcher’s counsel filed a motion to withdraw and a

supporting brief. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a).

                                              II.

       In Anders v. California, the Supreme Court held that “if counsel finds his [client’s

appeal] to be wholly frivolous, after a conscientious examination of it, he should so

advise the court and request permission to withdraw.” 386 U.S. at 744. In doing so,

counsel must submit a brief addressing any issue that “might arguably support the

appeal.” Id.; see also L.A.R. 109.2(a).2 We must then determine whether the appeal is

“wholly frivolous.” Anders, 386 U.S. at 744. In making this determination, we evaluate:

“(1) whether counsel adequately fulfilled the rule’s requirements; 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).




       2
        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, 87 S. Ct. 1396, 18 L.Ed.2d 493 (1967),
which shall be served upon the appellant and the United States.”

                                              3
                                             A.

       Under the first prong of this inquiry, counsel must “satisfy the court that counsel

has thoroughly examined the record in search of appealable issues, and . . . explain why

the issues are frivolous.” Youla, 241 F.3d at 300. In his brief, counsel addressed three

possible issues: (1) whether the District Court had jurisdiction to take Belcher’s guilty

plea and impose sentence; (2) whether the guilty plea was valid; and (3) whether the

District Court properly calculated the sentence and the sentence was reasonable. Counsel

also provided an explanation as to why each of these issues are frivolous. Having

reviewed counsel’s brief and the accompanying materials, we conclude that he has

satisfied this requirement.

                                             B.

       After concluding that counsel has satisfied the first prong, we must then review the

record and determine whether any nonfrivolous issues for appeal exist. “[A]n appeal on a

matter of law is frivolous where ‘[none] of the legal points [are] arguable on their

merits.’” Neitzke v. Williams, 490 U.S. 319, 325 (1989) (quoting Anders, 386 U.S. at

744). Although our review is independent, if the Anders brief appears to be adequate on

its face, a “complete scouring of the record” is unnecessary. Youla, 241 F.3d at 301.

Instead, we can allow the Anders brief to guide our review. Id. In the present case,

counsel’s Anders brief is adequate on its face, and thus, it will guide our review.




                                              4
       First, counsel raises the issue of the District Court’s jurisdiction to conduct

Belcher’s plea colloquy and impose sentence. However, he established that this issue

lacks merit because the District Court has jurisdiction “of all offenses against the laws of

the United States” pursuant to 18 U.S.C. § 3231. Therefore, the District Court properly

exercised jurisdiction over the plea and sentencing proceedings.

       Second, counsel raises the issue of whether Belcher’s guilty plea was valid. For a

guilty plea to meet the constitutional requirements established in Boykin v. Alabama, 395

U.S. 238 (1969), and the statutory requirements of Federal Rule of Criminal Procedure

11, we have stated that, during the plea colloquy:

       “The court must advise the defendant, inter alia, of the waiver of certain
       constitutional rights by virtue of a guilty plea, the nature of the charges to
       which he or she is pleading guilty, the maximum possible penalty to which
       he or she is exposed, the court’s obligation to apply the Sentencing
       Guidelines [and] . . . discretion to depart from those guidelines under some
       circumstances, and the terms of any plea-agreement provision waiving the
       right to appeal or to collaterally attack the sentence. . . . The district court
       must ensure that the defendant receives these caveats, understands them,
       and still wishes of his or her own volition to plead guilty.

United States v. Schweitzer, 454 F.3d 197, 202-03 (3d Cir. 2006) (internal quotation

marks and citations omitted). After reviewing the record of the plea colloquy, we

conclude that the District Court thoroughly advised Belcher of all of the above issues, and

Belcher indicated that he understood the consequences of his plea. Therefore, this issue

lacks merit.




                                               5
       Finally, we agree with counsel that no nonfrivolous issues exist as to the District

Court’s sentencing of Belcher. The District Court properly calculated the Guidelines

range of 78 to 97 months as required by United States v. Gunter, 462 F.3d 237, 247 (3d

Cir. 2006). Moreover, Belcher’s sentence was not unreasonable under United States v.

Booker, 543 U.S. 220 (2005), and its progeny because the District Court adequately

considered the 18 U.S.C. § 3553(a) factors in determining Belcher’s sentence. See United

States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006). Accordingly, our independent review

of the record demonstrates that Belcher has no nonfrivolous issues for appeal.

                                              III.

       For these reasons, we will grant defense counsel’s Anders motion and affirm the

sentence imposed by the District Court.3




       3
        As a result, we conclude that it is not necessary to appoint counsel to file a
petition for rehearing in this Court or a petition for writ of certiorari in the United States
Supreme Court on Belcher’s behalf. See L.A.R. 109.2(b).

                                               6
