                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-22-2009

USA v. James Ball, III
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1546




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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 08-1546


                          UNITED STATES OF AMERICA

                                          v.

                                 JAMES A. BALL, III,

                                               Appellant


                   On Appeal from the United States District Court
                              for the District of Delaware
                               (D.C. No. 06-cr-00101-1)
                   District Judge: Honorable Joseph J. Farnan, Jr.


                     Submitted Under Third Circuit LAR 34.1(a)
                                  May 19, 2009

                BEFORE: RENDELL and GARTH, Circuit Judges, and
                        PADOVA, Senior District Judge.*

                            (Opinion Filed June 22, 2009)




                             OPINION OF THE COURT


PADOVA, Senior District Judge.


   *
     The Honorable John R. Padova, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
       Appellant James A. Ball, III, pled guilty, pursuant to a plea agreement, to one

count of wire fraud, in violation of 18 U.S.C. § 1343, and one count of causing the filing

of a false currency transaction report (“CTR”), in violation of 31 U.S.C. § 5324(a)(2).

The charges arose out of Appellant’s wire fraud scheme, through which he stole over

$152,000 from clients of his business. Counsel for Appellant has moved to withdraw as

appellate counsel and has filed a brief in support of the motion pursuant to Anders v.

California, 386 U.S. 738 (1967). Counsel contends that this case presents no

nonfrivolous issues for appeal. We agree. Accordingly, we will affirm the judgment of

the District Court and, in a separate order filed concurrently herewith, will grant

Counsel’s motion to withdraw.

                                             I.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a). We exercise plenary review to determine whether there are any nonfrivolous

issues on appeal. Penson v. Ohio, 488 U.S. 75, 80 (1988). The determination of

frivolousness is informed by the standard of review for each potential claim raised. See,

e.g., United States v. Schuh, 289 F.3d 968, 974-76 (7th Cir. 2002).

                                             II.

       Because we write solely for the parties, we will address only those facts necessary

to our decision. In December 2001, United Check Cashing (“UCC”) entered into an

agreement to have an automated teller machine (“ATM”) serviced by a company located

in Glendale, California, called Automated Systems America, Inc. (“ASAI”). Pursuant to

                                              2
the agreement, UCC kept the ATM filled with cash and collected the lion’s share of user

fees levied against users of its ATM. ASAI, through a third-party company,

electronically processed ATM transactions for UCC and deposited into UCC’s checking

account reimbursements for the currency dispensed from UCC’s ATM, as well as UCC’s

share of the ATM fees.

       In February 2003, UCC requested that ASAI deposit its reimbursements and fees

into a different bank account than ASAI had used for previous deposits. Because of a

miscommunication between two of ASAI’s offices, however, UCC’s request went

unfulfilled. ASAI attempted but failed to deposit UCC’s money into its old bank account,

and subsequently contacted Appellant, who was servicing the UCC account for ASAI.

Rather than providing ASAI with UCC’s correct bank account information, Appellant

provided ASAI with information for one of his own bank accounts. In April 2004,

Appellant again provided ASAI with his own bank account information, this time at a

different bank, to redirect deposits of UCC funds to his control. In order to conceal the

source of the stolen funds, Appellant wrote checks against the deposits, made out to

himself or to one of his businesses, and then deposited such checks into other business or

personal accounts. Appellant also provided false information to the financial institutions

handling the funds, for example, by falsely identifying himself as a “mortgage lender”

and “Vice President of Sales” for purposes of the institutions’ CTRs. All told, Appellant

converted over $152,000 of UCC’s money from March 2003 to March 2005.

       Appellant pled guilty, pursuant to a plea agreement, on April 23, 2007, and was

                                             3
sentenced on January 30, 2008. The presentence investigation report (“PSR”), to which

Appellant did not object, determined that Appellant’s total offense level was 16 and his

criminal history category was I, yielding a Guidelines sentencing range of 21 to 27

months of imprisonment. The probation officer recommended that Appellant receive a

sentence at the top-end of the Guidelines range. The district court also heard defense

counsel’s arguments in favor of leniency, and considered the Government’s

recommendation that it impose a 24-month sentence.1 The District Court then sentenced

Appellant to 24 months’ imprisonment, which fell in the middle of the advisory

Guidelines custody range, and imposed mandatory restitution in the amount of

$100,858.82, the remaining amount owed to UCC. Appellant timely filed this appeal.

                                             III.

       Our role with respect to Anders briefs is to determine whether the appeal is wholly

frivolous. If so, we may “grant counsel’s motion to withdraw and dismiss the appeal . . .

.” United States v. Youla, 241 F.3d 296, 299 (3d Cir. 2001) (citing Anders, 386 U.S. at

744). However, if we find “‘any of the legal points arguable on their merits (and

therefore not frivolous) [we] must, prior to decision, afford the indigent the assistance of

counsel to argue the appeal.’” Id. at 300 (quoting Anders, 386 U.S. at 744). We have



   1
    In support of its mid-range recommendation, the Government emphasized the fact that
Appellant had committed these offenses in spite of his positive personal
circumstances—which included living at his parents’ house rent-free, the support of friends
and family, and his college education—as well as the fact that Appellant had his bail revoked
during the pendency of the case because of intervening criminal conduct.

                                              4
codified this standard in Local Appellate Rule 109.2(a). Id.

       Our Anders inquiry is twofold. First, we must determine “whether counsel

adequately fulfilled the rule’s requirements.” Id. (citation omitted). An adequate Anders

brief: (1) “satisf[ies] the court that counsel has thoroughly examined the record in search

of appealable issues,” id.; (2) identifies any “issue[s] arguably supporting the appeal even

though the appeal was wholly frivolous,” Smith v. Robbins, 528 U.S. 259, 285 (2000);

and (3) “explain[s] why the issues are frivolous.” United States v. Marvin, 211 F.3d 778,

780 (3d Cir. 2000). Second, we must determine “whether an independent review of the

record presents any nonfrivolous issues.” Youla, 241 F.3d at 300. “An appeal on a

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

Id. at 301 (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)); see also McCoy v.

Court of Appeals of Wis., 486 U.S. 429, 438 n.10 (1988) (noting that an appeal is

frivolous if it “lacks any basis in law or fact”).

                                               A.

       As an initial matter, we find Counsel’s Anders brief inadequate on its face.2 When

a defendant pleads guilty, three potential issues remain open for appeal: the jurisdiction of

the court to enter the conviction and impose sentence, the validity or voluntariness of the

guilty plea, and the legality of the sentence. See United States v. Broce, 488 U.S. 563,

569 (1989); 18 U.S.C. § 3742(a). In his brief, Counsel identifies and discusses only the



   2
    Appellant did not exercise his right to file a brief pro se. See 3d Cir. L.A.R. 109.2(a).

                                                5
reasonableness of Appellant’s sentence. Counsel’s failure to mention, let alone discuss,

the other two potential issues, coupled with his failure to provide this Court with a copy

of the plea hearing transcript, which is necessary to determining the validity or

voluntariness of Appellant’s plea, does not demonstrate a “conscientious examination” of

the record. Youla, 241 F.3d at 300 (citing Marvin, 211 F.3d at 780).

       Moreover, to the extent that Counsel argues Appellant’s sentence was reasonable,

he fails to identify and rebut potential counter-arguments against a finding of

frivolousness. Rather, Counsel’s argument consists primarily of boilerplate legal

standards and summary conclusions. For example, Counsel asserts that “the District

Court properly calculated [Appellant’s] guideline range to be 21 to 27 months of

incarceration” simply because “there was no objections [sic] to the presentence report . . .

.” (Appellant’s Br. at 12.) At the same time, Counsel neither mentions nor discusses the

PSR’s questionable inclusion of an additional $82,900 in the loss calculation, pursuant to

the “relevant conduct” guideline (U.S.S.G. § 1B1.3(a)(2)), for funds involved in

unindicted conduct occurring in 2001. These funds effectively increased Appellant’s

Guidelines sentencing range by six months across the board, yet there was no discussion

on the record regarding the explicit rationale for their inclusion. Although we ultimately

find that the inclusion of such funds in the loss calculation was not in error, see infra,

Counsel’s failure to address this important aspect of Appellant’s Guidelines calculation in

his brief, in conjunction with his failure to discuss either the district court’s jurisdiction or

the validity or voluntariness of Appellant’s plea, does not “‘provide[] sufficient indicia

                                                6
that he thoroughly searched the record and the law in service of his client so that we

might confidently consider only those objections raised.’” Youla, 241 F.3d at 301

(quoting Marvin, 211 F.3d at 781). Consequently, we find that the Anders brief is

inadequate and reject it.

                                              B.

       Having determined that Counsel’s Anders brief is inadequate, we will nevertheless

limit our review of the record, in light of Appellant’s guilty plea, to the District Court’s

jurisdiction, the validity or voluntariness of Appellant’s plea, and the legality of

Appellant’s sentence. While Counsel’s Anders brief is inadequate, and no pro se brief

was filed, we will not appoint new counsel, as we do not need further assistance; the

issues are straightforward and easily resolvable on the record before us. See 3d Cir.

L.A.R. 109.2(a).

       First, with respect to the District Court’s jurisdiction, Appellant pled guilty to one

count of wire fraud, in violation of 18 U.S.C. § 1343, and one count of causing the filing

of a false CTR, in violation of 31 U.S.C. § 5324(a)(2). The District Court plainly had

jurisdiction to punish these offenses. See 18 U.S.C. § 3231 (conferring original,

exclusive jurisdiction to district courts “of all offenses against the laws of the United

States”); 31 U.S.C. § 5324(d) (providing criminal penalties for violations of § 5324).

Thus, Appellant can raise no nonfrivolous issues with respect to jurisdiction.

       Second, with respect to Appellant’s guilty plea, the record shows that the District

Court, as required by Fed. R. Crim. P. 11(b) and Boykin v. Alabama, 395 U.S. 238

                                              7
(1969), thoroughly colloquied Appellant before accepting his plea. The District Court

informed Appellant of the nature of the charges against him, the rights he forfeited by

pleading guilty, the maximum penalties permitted for his offenses, the advisory nature of

the Sentencing Guidelines, the fact that he could not withdraw his plea merely because he

may be dissatisfied with his sentence, and the factual basis for his guilty plea. See United

States v. Schweitzer, 454 F.3d 197, 202 (3d Cir. 2006). Looking at the totality of the

circumstances surrounding Appellant’s plea, we are satisfied that Appellant voluntarily

and knowingly pled guilty. See United States v. Cefaratti, 221 F.3d 502, 508 (3d Cir.

2000); Heiser v. Ryan, 951 F.2d 559, 564 (3d Cir. 1991). Appellant can therefore raise

no nonfrivolous issues with respect to his plea.

        Finally, with respect to the legality of Appellant’s sentence, the District Court

imposed a sentence that was both below the statutory maximum and reasonable. See

United States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006); United States v. Flenory, 876

F.2d 10, 11 (3d Cir. 1989). The district court followed the procedures announced in

United States v. Gall, 128 S. Ct. 586 (2007), by giving meaningful consideration to the

pertinent sentencing factors embodied in 18 U.S.C. § 3553(a), and provided an adequate

justification for the within-Guidelines sentence imposed.3 See United States v. Levinson,


    3
     As noted above, the PSR included in the calculation of loss $82,900 in funds that
Appellant misappropriated pursuant to unindicted conduct that predated the instant offenses
by almost two years. To be properly included, the $82,900 had to arise from “acts and
omissions [of the defendant] that were part of the same course of conduct or common scheme
or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2). Although the unindicted
conduct occurred in 2001 and involved a different victim, it involved Appellant’s

                                               8
543 F.3d 190, 194-96 (3d Cir. 2008). Consequently, Appellant can raise no nonfrivolous

issues with respect to the legality of his sentence.

                                             IV.

       Although we conclude that Counsel has not fulfilled his obligation under Anders

and the Local Appellate Rules to provide an adequate no-merit brief, our independent

review of the record yields no nonfrivolous issues for appeal. We therefore will AFFIRM

the Judgment and Commitment Order of the District Court and, in a separate order,

GRANT Counsel’s motion to withdraw.




misappropriation of an ATM client’s fees and reimbursements, which had been wired to him.
Because this conduct involved a similar modus operandi as Appellant’s indicted wire fraud
conduct, and thus could be considered part of a common plan or scheme, the District Court
properly included the $82,900 in the actual loss calculation. See U.S.S.G. § 1B1.3, cmt.,
n.9(A).

                                               9
