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


2-27-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4138




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 05-4138
                                    ____________

                          UNITED STATES OF AMERICA

                                            v.

                                    JOHN WARE,

                                          Appellant
                                    ____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                (D.C. No. 03-cr-00084)
                      District Judge: Honorable Stewart Dalzell
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 February 16, 2007

      Before: SMITH and FISHER, Circuit Judges, and DOWD,* District Judge.

                               (Filed: February 27, 2007)
                                     ____________

                              OPINION OF THE COURT
                                   ____________




      *
        The Honorable David D. Dowd, Jr., United States District Judge for the Northern
District of Ohio, sitting by designation.
FISHER, Circuit Judge.

       After John Ware filed a timely notice of appeal from the District Court’s

revocation of his supervised release, Ware’s appointed counsel filed a brief and a 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.

                                              I.

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

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

convicted of bank fraud in the United States District Court for the Middle District of

Pennsylvania and subsequently sentenced on September 12, 2002, to fifteen months

imprisonment and five years of supervised release.1

       While Ware has completed the service of his term of imprisonment, he has been

back before the District Court on three occasions for violating the terms of his supervised

release. The District Court found Ware to be in violation of his supervised release on the

first two occasions and revoked his supervised release each time. The third and most

recent violation hearing was commenced on July 12, 2005, when Ware’s probation officer

filed a violation petition with the District Court alleging that Ware had violated the

conditions of his supervised release by (1) failing to report to his probation officer on

numerous occasions; (2) changing his residence without providing notice; (3) using


       1
       On February 6, 2003, Ware’s case was transferred to the Eastern District of
Pennsylvania.

                                              2
cocaine; and (4) failing to participate in mental health and drug treatment at the direction

of the probation office.

       At the August 30, 2005 revocation hearing, Ware did not contest that he repeatedly

tested positive for cocaine use and repeatedly failed to report to his probation officer. The

District Court found Ware in “wholesale violation of the conditions of his supervised

release,” sentenced him to twelve months of imprisonment, and ordered his supervised

release to be terminated.

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

issues to appeal, Ware’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 client’s case 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, identifying any issues that might “arguably support the appeal.”

Id.

                                                3
       “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

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

to decide whether the case before us is wholly frivolous. Our inquiry is two-fold,

considering first “whether counsel adequately fulfilled the requirements of [Rule

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

nonfrivolous issues.” Id. (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.” Youla, 241

F.3d 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

                                              4
quotation marks and citations omitted). In his Brief, counsel identified four possible

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

portions of the record. Furthermore, counsel has set forth in his brief why the four issues

raised are frivolous. Such a compilation demonstrates that counsel thoroughly searched

the record and the law in service of his client.

                                              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 to

determine whether there exist any non-frivolous issues for appeal. An appeal 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 Court of Appeals for the

Seventh Circuit in United States v. Wagner, 103 F.3d 551 (7th Cir. 1996), to ascertain

“how deeply the appellate courts must explore the record to determine whether” the case

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 reviewing

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.

       We initially agree with counsel that there is no colorable claim that the revocation

proceedings were inappropriately initiated. When a probation officer files a petition

                                              5
alleging a violation and requesting action by the court, the officer is merely acting as an

agent for the district court and giving it the information necessary to initiate a revocation

proceeding on its own. United States v. Cofield, 233 F.3d 405, 408-09 (6th Cir. 2000).

Therefore, Ware’s probation officer properly informed the District Court of Ware’s

violations and proceedings were properly commenced. See, e.g., id.; United States v.

Mejia-Sanchez, 172 F.3d 1172, 1174 (9th Cir. 1999); United States v. Davis, 151 F.3d

1304, 1307 (10th Cir. 1998).

       Further, the record discloses that the District Court complied in all respects with

the due process requirements established in Gagnon v. Scarpelli, 411 U.S. 778, 782

(1973), Black v. Romano, 471 U.S. 606, 612 (1985), and the procedural requirements

established in Federal Rule of Criminal Procedure 32.1 in conducting Ware’s revocation

hearing. First, the probation officer's petition and report for revocation provided Ware

with written notice of the alleged supervised release violations. United States v.

Barnhart, 980 F.2d 219, 223 (3d Cir. 1992). At the revocation hearing, which was held

within a reasonable time, Ware was represented by counsel who was granted an

opportunity to cross-examine witnesses. The evidence against Ware was disclosed, and

he was provided with an opportunity to be heard and to speak on his own behalf. Upon

revoking Ware’s probation, the District Court provided a clear statement as to the

evidence on which it relied and the reasons for revoking Ware’s supervised release.

Finally, the record does not suggest that the District Court was not neutral and detached.



                                              6
       As to any possible claim that there was insufficient evidence to revoke Ware’s

supervised release, we agree with counsel that Ware’s admission to having committed

each of the violations alleged against him is sufficient evidence to support the revocation.

       Finally, as to any potential claim that the sentence imposed on Ware after the

revocation of his supervised release was unlawful or an abuse of the District Court’s

discretion, we agree with counsel that no non-frivolous issue for appeal exists here. Ware

was being sentenced after having committed four Grade C violations and after having

been found to have violated his supervised release on two prior occasions. The sentence

of twelve months imprisonment was within statutory limits and the advisory range

suggested by the United States Sentencing Guidelines and was reasonable under the

circumstances. The District Court did not abuse its discretion in imposing such a

sentence. See United States v. Schwegel, 126 F.3d 551, 555 (3d Cir. 1997) (finding

district court’s imposition of sentence for violation of supervised release was not an abuse

of discretion where it properly considered the suggested Guidelines sentence in

combination with defendant’s drug habit).

                                              III.

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

on appeal. Accordingly, we will grant counsel’s Anders motion and affirm the judgment

of 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

                                               7
Supreme Court on Ware’s behalf. See Local Appellate Rule 109.2(b).

                                         8
