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


4-11-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5457




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                                              NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               ____________

                    No. 05-5457
                   ____________

         UNITED STATES OF AMERICA

                          v.

        MICHAEL COLLINS, a/k/a Mikey,


                 Michael D. Collins,

                          Appellants
                   ____________

   On Appeal from the United States District Court
             for the District of New Jersey
               (D.C. No. 05-cr-00557-5)
   District Judge: Honorable Garrett E. Brown, Jr.
                     ____________

     Submitted Under Third Circuit LAR 34.1(a)
                 March 26, 2007

Before: FISHER, JORDAN and ROTH, Circuit Judges.

               (Filed: April 11, 2007)
                   ____________

            OPINION OF THE COURT
                 ____________
FISHER, Circuit Judge.

       After Michael Collins filed a timely notice of appeal from the District Court’s

entry of a judgment of conviction and sentence, Collins’s appointed counsel filed a brief

and motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). For the

reasons set forth below, we will grant counsel’s Anders motion and affirm the judgment

of the District Court.

                                              I.

       As we write only for the parties, who are familiar with the factual context and the

procedural history of the case, we will set forth only those facts necessary to our analysis.

Collins’s conviction stems from an investigation that began in February of 2004, dealing

with the sale of controlled substances in Asbury Park, New Jersey. After an extensive

investigation involving wiretaps, video surveillance and controlled purchases of narcotics,

law enforcement officers arrested Collins. On July 21, 2005, a twelve-count indictment

was filed in the United States District Court for the District of New Jersey charging that

Collins, and others, knowingly and intentionally conspired and agreed to distribute and to

possess with intent to distribute heroin. After extensive proffer meetings, Collins was

offered a cooperative plea agreement.

       At a September 7, 2005 plea proceeding, Collins pleaded guilty to Count One of

the indictment, which charged that he knowingly and intentionally possessed with the

intent to distribute at least 100 grams of heroin, a Schedule I narcotic, in violation of 21

U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The government agreed to dismiss the remaining

                                              2
counts of the indictment, and Collins voluntarily waived the right to file any appeal

pursuant to paragraph 8 of Schedule A of the Plea Agreement. Based on the cooperation

and assistance Collins provided the government upon his arrest, the government also

moved for a downward departure pursuant to U.S.S.G. § 5K1.1. Collins was sentenced to

140 months imprisonment, 5 years supervised release, and a fine of $4,000.

       Collins filed a timely notice of appeal. Concluding that there were no non-

frivolous issues to appeal, Collins’s counsel filed a motion to withdraw pursuant to

Anders v. California, together with a supporting brief.

                                               II.

       “In Anders, the Supreme Court established guidelines for a lawyer seeking to

withdraw from a case when the indigent criminal defendant he represents wishes to

pursue frivolous arguments on appeal.” United States v. Youla, 241 F.3d 296, 299 (3d

Cir. 2001). In his role as advocate, the “constitutional requirement of substantial equality

and fair process . . . requires that counsel support his client’s appeal to the best of his

ability.” Id. However, if a thorough examination of the record indicates that the client

has no reasonable grounds for appeal, counsel “should so advise the court and request

permission to withdraw.” Anders, 386 U.S. at 744. When so doing, counsel must submit

a brief in support of his request, identifying any issues that might “arguably support the

appeal.” Id.

       “The Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines the

Supreme Court promulgated in Anders to assure that indigent clients receive adequate and

                                               3
fair representation.” Youla, 241 F.3d at 300. Rule 109.2(a) requires 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,] which shall be served upon the appellant and the United

States.” L.A.R. 109.2(a).

       Once counsel has filed an Anders motion and submitted a brief, it is our role to

decide whether the appeal before us is wholly frivolous. Our inquiry is twofold,

considering (1) “whether counsel adequately fulfilled the requirements of [Rule

109.2(a)],” and, (2) “whether an independent review of the record presents any

nonfrivolous issues.” Youla, 241 F.3d at 300 (citing United States v. Marvin, 211 F.3d

778, 780 (3d Cir. 2000)).

                                               A.

       Under the first prong of a Rule 109.2(a) inquiry, counsel must present sufficient

information “to satisfy the court that counsel has thoroughly examined the record in

search of appealable issues, and . . . to explain why the issues are frivolous.” Id. at 300.

After thoroughly reviewing the record in this appeal, we conclude that counsel has

satisfied the requirements of Rule 109.2(a).

       Although counsel need not raise and reject every possible claim, he must “provide

sufficient indicia that he thoroughly searched the record and the law in service of his

client so that we might confidently consider only those objections raised.” Id. (internal

quotation marks and citations omitted). In his brief, counsel identified two possible

                                               4
issues for appeal and submitted a review of the law and an appendix with the salient

portions of the record. Such a compilation demonstrates that counsel thoroughly searched

the record and the law in service of his client. Furthermore, counsel has set forth in his

brief why the two issues raised are frivolous.

                                              B.

       After satisfying ourselves that the first prong of our Rule 109.2(a) inquiry has been

met by counsel’s thorough examination of the record, we must review the record and

determine whether there exist any non-frivolous issues for appeal. An appeal as 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). In Youla, we adopted the approach of the

Unites States Court of Appeals for the Seventh Circuit in United States v. Wagner, 103

F.3d 551 (7th Cir. 1996), to determine “how deeply the appellate courts must explore the

record to determine whether” the appeal is wholly frivolous. Youla, 241 F.3d at 301. We

rejected a “complete scouring of the record” and held that “where the Anders brief

initially appears adequate on its face, the proper course is for the appellate court to be

guided in reviewing the record by the Anders brief itself.” Id. (internal quotation marks

and citations omitted). Because the Anders brief filed here by counsel is adequate on its

face, we are accordingly guided by that brief.




                                              5
       Initially, it is important to note that Collins’s guilty plea limits the issues he may

raise on appeal to challenging the validity of his indictment or guilty plea.1 See Menna v.

New York, 423 U.S. 61, 62 (1975) (citing Blackledge v. Perry, 417 U.S. 21, 30 (1974))

(allowing a challenge to the indictment despite a waiver); Tollett v. Henderson, 411 U.S.

258, 267 (1973) (allowing a challenge to the voluntariness of the plea).

       First, there are no non-frivolous issues regarding the constitutionality of Collins’s

indictment. See Menna, 423 U.S. at 62 (citing Blackledge, 417 U.S. at 30).

       Second, we agree with counsel that there is no colorable claim with respect to the

validity of the plea. For a plea to withstand a challenge on review, it must meet both the

statutory requirements of Federal Rule of Criminal Procedure 11 and the constitutional

requirements as set forth in Boykin v. Alabama, 395 U.S. 238 (1969). A review of the

plea colloquy demonstrates that the District Court properly questioned and advised

Collins as to his rights, took affirmative steps “to ensure that the plea was intelligent and

voluntary,” and determined the factual basis for the plea pursuant to Boykin and Federal

Rule of Criminal Procedure 11. See Boykin, 395 U.S. at 242.

       As to any potential claim that the District Court erred in its sentencing, we agree

with counsel that no non-frivolous issue for appeal exists. Collins was properly found to



       1
        “Waivers of appeals, if entered into knowingly and voluntarily, are valid.” United
States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2007). The plea hearing transcript
demonstrates that Collins entered into his plea agreement knowingly and voluntarily and
we find that such a waiver does not work a miscarriage of justice. We therefore hold that
the waiver of appellate rights is valid.

                                               6
be a career offender under U.S.S.G. § 4B1.1(a). The District Court sentenced Collins to

140 months imprisonment and, upon release, he will be place on supervised release for a

period of 5 years. This sentence represents a discretionary downward departure, pursuant

to the government’s § 5K1.1. motion, from the otherwise applicable Sentencing

Guidelines range of 188 to 235 months. We find no problem with the sentencing

procedure used by the District Court.

       Finally, as to any potential appeal that the extent of the downward departure was

insufficient, we lack jurisdiction to review the extent of a district court’s departure under

§ 5K1.1 unless it is imposed in violation of law. United States v. McKnight, 448 F.3d

237, 238 (3d Cir. 2006). Collins’s sentence was not imposed in violation of law, and we

therefore may not review the District Court’s decision.

       In sum, after conducting our own review, we find no non-frivolous issues to raise

on appeal For this reason, we will grant defense counsel’s Anders motion and affirm the

sentence imposed by the District Court.2




       2
        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 Collins’s behalf. See L.A.R. 109.2(b).

                                               7
