                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-25-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1920




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                     No. 06-1920
                                     __________

                          UNITED STATES OF AMERICA

                                          v.

                                 CHARLES WHITE,

                                              Appellant
                                     __________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                          (D.C. Criminal No. 01-cr-00733)
                        District Judge: Hon. Petrese B. Tucker
                                     __________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 8, 2007

                   Before: RENDELL and JORDAN, Circuit Judges,
                           and VANASKIE*, District Judge

                                (Filed: May 25, 2007)
                                      _________

                                      OPINION
                                      _________

VANASKIE, District Judge.

      Charles White (“White”) appeals his sentence imposed after he pled guilty to being


  *
   The Honorable Thomas I. Vanaskie, United States District Judge for the Middle
District of Pennsylvania, sitting by designation.
a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). White’s counsel

has moved for permission to withdraw from representation, and has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), and Third Circuit Local Appellate Rule

(“LAR”) 109.2(a), certifying the absence of any issues with arguable merit. We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). For the reasons that follow,

we will grant counsel’s motion to withdraw and affirm White’s sentence.

       On December 5, 2001, a grand jury returned a single-count indictment against

White charging him with being a felon in possession of a firearm. In connection with this

offense, White had an altercation with Fallyn Lingham in which he brandished the

firearm and threatened to shoot her.

       On April 8, 2002, White pled guilty pursuant to a written plea agreement. Among

other things, White stipulated that Section 2K2.1(b)(5) of the United States Sentencing

Guidelines – providing for a four-level increase in the offense level where the firearm is

used or possessed in connection with another felony offense – would apply in

determining his sentence because he committed simple assault and resisting arrest in

connection with this offense.1 (Supp. App. to Appellee’s Br. 3.) During the plea

colloquy, White acknowledged to the District Court that he understood his offense level

would be increased by four levels. (App. to Appellant’s Br. 16a.) Moreover, White did

not object to the Government’s summary of the evidence it would have presented had the


  1
   The 2006 amendments to the Sentencing Guidelines redesignated Section 2K2.1(b)(5)
as Section 2K2.1(b)(6).

                                             2
matter proceeded to trial, which included a description of White’s confrontation with Ms.

Lingham. (Id. at 22a-24a.)

       The United State Probation Office issued a Presentence Investigation Report

(“PSR”). With the four-level increase under Section 2K2.1(b)(5), the PSR determined

White’s total offense level to be 27. In conjunction with a criminal history category of

III, the PSR calculated White’s then-mandatory Guidelines range as 87 to 108 months

imprisonment.

       On May 24, 2004, the District Court sentenced White to a prison term of 87

months. White appealed to this Court. Although we affirmed White’s conviction, we

remanded for re-sentencing to consider the application of United States v. Booker, 543

U.S. 220 (2005). See United States v. White, 156 Fed. Appx. 506, 509 (3d Cir. 2005).

On remand, the District Court relied upon the PSR initially prepared by the Probation

Office. White did not object to the factual basis of the PSR. On March 9, 2006, the

District Court sentenced White to 80 months imprisonment, a seven-month variance from

the advisory Guidelines range. This appeal followed.

       We exercise plenary review in ascertaining, after a complete assessment of the

proceedings, whether an appeal is wholly frivolous. In this regard, our inquiry is twofold.

First, we must determine whether counsel has adequately fulfilled the obligations

imposed by LAR 109.2(a). United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).

Second, we must confirm, after an independent review of the record, that the appeal does

not present any non-frivolous issues. Id.

                                             3
       Counsel fulfills the requirements of LAR 109.2(a) by (1) satisfying “the court that

counsel has thoroughly examined the record in search of appealable issues,” and (2)

explaining why the issues are frivolous. Id. Where the Anders brief appears adequate on

its face, we limit our scrutiny to those parts of the record identified in the brief, as well as

any issues asserted by the appellant in a pro se brief.2 Id. at 301.

       Counsel presents two arguably non-frivolous issues and explains why each issue is

without merit.3 First, White contends that the District Court erred in applying the four-

level increase under Section 2K2.1(b)(5) because a question of fact existed as to whether

White brandished the firearm in self-defense, which could only be resolved by a jury. As

White’s counsel observes, however, White did not contest the factual recitation by the

Government at his plea colloquy, which included details of his assault of Ms. Lingham.

Moreover, White (1) stipulated to the application of Section 2K2.1(b)(5) in his written

plea agreement, and (2) did not object to the statement of facts in the PSR. Consequently,

we agree that this argument is without merit. See United States v. Hill, 411 F.3d 425, 426

n.1 (3d Cir. 2005) (no Sixth Amendment implications where advisory Guidelines range is


  2
    White was advised by the Court of his right to file a pro se brief, but he has elected not
to do so. Our review, therefore, is confined to the portions of the record identified in
counsel’s Anders brief.
  3
   Counsel also suggests a third issue – the District Court’s refusal to depart from the
advisory Guidelines range. This issue is plainly frivolous because there was never a
motion for a downward departure presented to the District Court. In any event, while not
formally departing from the advisory Guidelines range, the District Court exercised its
discretion in imposing a sentence that represented a seven-month downward variance
from the advisory Guidelines range.

                                               4
determined on the basis of facts to which the defendant has stipulated).

       White also argues that his sentence of 80 months imprisonment, which is below

the advisory Guidelines range, is unreasonable. To determine whether a sentence is

reasonable, the record must disclose that the District Court “gave meaningful

consideration to the [18 U.S.C.] § 3553(a) factors,” and “reasonably applied [those

factors] to the circumstances of the case.” United States v. Cooper, 437 F.3d 324, 329-30

(3d Cir. 2006). White, as the appellant, bears the burden of demonstrating his sentence is

unreasonable. See id. at 332. White’s counsel asserts, and our independent review of the

record confirms, that the District Court meaningfully considered and reasonably applied

the Section 3553(a) factors. Therefore, we find this argument to be frivolous as well.

       We are satisfied that counsel has conducted a thorough examination of the record

and fulfilled the requirements of LAR 109.2(a). Finally, after our independent review of

the record, we have been unable to discern any non-frivolous issues to be asserted on

appeal. Accordingly, we will affirm the District Court’s March 9, 2006 judgment of

sentence, and grant counsel’s motion to withdraw.




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