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


2-20-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4103




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                              Nos. 06-4103 and 06-4104
                                   _____________

                          UNITED STATES OF AMERICA

                                           v.

                             ROBERT ANWAR NICKS,
                              a/k/a JAYWINE MASON

                                  Robert Anwar Nicks,
                                          Appellant
                                   _____________

                    Appeals from the United States District Court
                        for the Middle District of Pennsylvania
                  (D.C. Criminal Nos. 05-cr-00404 and 06-cr-00120)
                        District Judge: Honorable Yvette Kane


                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 29, 2008

            Before: SCIRICA, Chief Judge, and RENDELL, Circuit Judges
                        and THOMPSON, *District Judge.

                             (Filed : February 20, 2008)


                             OPINION OF THE COURT




*Honorable Anne E. Thompson, Senior Judge of the United States District Court for the
District of New Jersey, sitting by designation.
RENDELL, Circuit Judge.

       Robert Anwar Nicks’ counsel has filed a brief pursuant to Anders v. California,

365 U.S. 738 (1967), and Third Circuit Local Appellate Rule 109.2, asking for permission

to withdraw from this case. Since there is no non-frivolous issue for appeal, we will

affirm the District Court’s judgment and grant counsel’s motion to withdraw.

       In Charlotte-Mecklenburg, North Carolina, Nicks shot and killed a man who had

abducted his mother at gunpoint and had raised his weapon when Nicks demanded his

mother’s release. The District Attorney decided not to prosecute Nicks because he

thought Nicks had a perfect defense. The federal government, however, charged him for

being a felon in possession of a firearm.

       While on pretrial release, Nicks absconded from supervision. Acting on a tip

regarding an armed fugitive, the police located Nicks at a hotel in Pennsylvania. He told

the police that he was unarmed but then reached into his shorts to remove a large pointed

object. The police then drew their weapons and Nicks fled to a parking lot across the

highway, leaving two loaded handguns in his flight path. He unsuccessfully attempted to

take two separate couples’ car keys before the police subdued him.

       Nicks pled guilty to two counts of attempted carjacking and one count of being a

felon in possession of a firearm in connection with the Pennsylvania incident, and also

pled guilty to the prior felon-in-possession charge stemming from the North Carolina

incident. The initial presentence investigation report (“PSR”) cross-referenced the first-



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degree murder section of the Sentencing Guidelines for the North Carolina offense, and

thus recommended a life sentence (which would have been capped at the 50-year

statutory maximum). After counsel objected, the Probation Office revised the PSR to

treat the North Carolina killing as voluntary manslaughter and thus decreased its

recommendation to a 324-405 month Guidelines range.

       Defense counsel and the Government met to resolve objections to the revised PSR

and stipulated to a 168-210 month Guidelines range, agreeing that, if the Court accepted

their joint recommendation, they would limit their arguments to where within that range

the sentence should be. The agreed-upon range was based on a voluntary manslaughter

cross-reference for the North Carolina offense and a two-point reduction for acceptance

of responsibility. The Court accepted the parties’ recommendation and sentenced Nicks

to 180 months in prison. Nicks subsequently filed this appeal, over which we have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       Our evaluation of an Anders brief entails a two-part inquiry. First, we must

determine whether counsel has thoroughly examined the record for appealable issues and

has successfully explained why all such issues are frivolous. United States v. Youla, 241

F.3d 296, 300 (3d Cir. 2001). Second, we must determine whether an independent review

of the record reveals any non-frivolous issues. Id. In a situation like this, where the

Anders brief appears adequate on its face and the appellant has submitted a pro se brief

identifying what he believes to be non-frivolous issues for appeal, we confine our review



                                              3
to those portions of the record identified by either of the two briefs. See id. at 310.

       Having pled guilty, Nicks may argue on appeal only (1) that the Court did not have

jurisdiction to convict and/or sentence him, (2) that his plea was unknowing, involuntary,

or otherwise invalid, or (3) that his sentence was illegal. See United States v. Broce, 488

U.S. 563, 569 (1989); 18 U.S.C. § 3742(a). We are satisfied that defense counsel has

thoroughly examined the record and has successfully demonstrated that there is no non-

frivolous appealable issue in any of these three categories. First, as counsel explains, the

District Court had jurisdiction over this matter because Nicks pled guilty to federal

offenses. See U.S.C. § 3231. Second, counsel rightly points out that the transcript of the

plea colloquy presents no reason to conclude that Nicks’ plea was unknowing,

involuntary, or otherwise invalid. Third, counsel argues correctly that Nicks’ sentence —

which was imposed after the Court’s meaningful consideration of the relevant 18 U.S.C.

§ 3553(a) factors and was toward the lower end of the Guidelines range to which Nicks

had stipulated — was reasonable. Counsel directs us to one more potential issue

regarding the legality of Nicks’ sentence: in the plea agreement, the Government agreed

to move for a three-point reduction if Nicks demonstrated acceptance of responsibility,

but it did not end up doing so at sentencing. As counsel explains, however, any argument

on this issue is frivolous because Nicks effectively waived any challenge to this part of

his sentence by later stipulating to a 168-210 Guidelines range based on a two-point

reduction for acceptance of responsibility.



                                              4
       In his pro se brief, Nicks argues that there are three separate non-frivolous issues

for appeal. First, he contends that he should be able to withdraw his plea because the

prosecution did not present a sufficient factual basis for the carjacking charges —

specifically, it failed to include the interstate commerce nexus required by the federal

carjacking statute, see 18 U.S.C. § 2119, in the factual basis it read aloud at the plea

colloquy. See Fed. R. Crim. P. 11(b)(3). This argument fails for two reasons. First,

although the Government did not state at the plea colloquy that the cars Nicks attempted

to carjack had traveled in interstate commerce, the District Court clearly did. In

reviewing the charges with Nicks at the beginning of the colloquy, the Court explained

that he would be pleading guilty to attempting to carjack “a green 1995 Ford Explorer . . .

that had been transported, shipped, and received in interstate and foreign commerce” and

a “1997 Nissan four-door . . . that had been transported, shipped, and received in

interstate and foreign commerce.” (App. 52-53.) Second, even if the Court did err by

accepting Nicks’ plea without the Government having included carjacking’s interstate

commerce element in its statement of the factual basis, there is no indication that Nicks

would not have pled guilty otherwise and, thus, no reason to allow him to withdraw his

plea at this point. See United States v. Knobloch, 131 F.3d 366, 370 (3d Cir. 1997).

       Second, Nicks argues that the District Court erred by cross-referencing the

voluntary manslaughter Guidelines section for the North Carolina felon-in-possession

offense, even though the local District Attorney had concluded that Nicks had a perfect



                                              5
defense for killing his mother’s abductor. This argument is frivolous because, again,

Nicks stipulated to a Guidelines range premised on the voluntary manslaughter cross-

reference.

       Finally, Nicks argues that he should be able to withdraw his guilty plea because the

Government violated its promise in the plea agreement that “if the United States believes

the defendant has provided ‘substantial assistance’ . . . , the United States may request the

Court to depart below any applicable mandatory minimum range and/or the guideline

range when fixing a sentence.” (App. 35-36.) This issue is frivolous because Nicks

effectively waived this part of the plea agreement when he stipulated to a particular

Guidelines range and agreed to limit all subsequent argument to where within that range

his sentence should be.

       Since counsel has fulfilled his Anders obligations and our independent review of

the record yields no non-frivolous issues for appeal, we will AFFIRM the District Court’s

judgment and GRANT counsel’s motion to withdraw.




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