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


9-29-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2872




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-2872


                           UNITED STATES OF AMERICA

                                           v.

                                  DENNIS JENKINS,
                                              Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                            (D.C. Crim. No. 00-cr-00419-4)
                 District Judge: The Honorable Eduardo C. Robreno


                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 22, 2008


                Before: BARRY, AMBRO and GARTH, Circuit Judges

                          (Opinion Filed: September 29, 2008)


                                       OPINION




BARRY, Circuit Judge

      Dennis Jenkins appeals the District Court’s judgment of sentence. His counsel

filed a motion to withdraw and supporting brief pursuant to Anders v. California, 386
U.S. 738 (1967). We will affirm the judgment of sentence and grant counsel’s motion to

withdraw.

                                              I.

       Because we write only for the parties, familiarity with the facts is presumed and

we set forth only those facts that are relevant to our analysis.

       Following a jury trial, Jenkins was convicted on one count of conspiracy to

distribute cocaine base (“crack”), one count of distributing crack, and one count of

distributing crack within 1000 feet of a public housing facility. The District Court found,

by a preponderance of the evidence, that he was personally responsible for the

distribution of over fifty grams of crack, resulting in a Sentencing Guidelines range of

262 to 327 months. The Court sentenced him to 262 months’ imprisonment,1 and Jenkins

appealed. We vacated his conviction on the conspiracy count, affirmed as to the

remaining counts, and remanded for resentencing. United States v. Phillips, 349 F.3d

138, 143-44 (3d Cir. 2003).

       On remand, following a hearing, the District Court reaffirmed its finding that

Jenkins was personally responsible for distributing over fifty grams of crack, calculated

the same Guidelines range of 262-327 months, and resentenced him to the same sentence,




   1
      Jenkins was sentenced to 240 months’ imprisonment on the conviction for
distributing crack, 262 months’ imprisonment on the conviction for conspiracy to
distribute crack, and 262 months’ imprisonment on the conviction for distributing crack
within 1000 feet of a public housing facility, all terms to run concurrently.

                                              2
262 months’ imprisonment. Jenkins again appealed, and we again remanded, this time

for resentencing in light of the Supreme Court’s intervening decision in United States v.

Booker, 543 U.S. 220 (2005). United States v. Jenkins, 164 Fed. Appx. 259, 259-60 (3d

Cir. 2006).

       On remand, following another hearing, the District Court again reaffirmed its

finding that Jenkins was personally responsible for distributing over fifty grams of crack,

resulting in the same Guidelines range of 262-327 months. However, based on its

consideration of the factors set forth in 18 U.S.C. § 3553(a), the Court exercised its

discretion and sentenced Jenkins to 199 months’ imprisonment. Jenkins filed a pro se

notice of appeal, and, in response thereto, his counsel filed a motion to withdraw and an

Anders brief indicating his belief that there are no nonfrivolous issues to be raised on

appeal.2

                                             II.

       Third Circuit Local Appellate Rule 109.2(a) permits counsel to “file a motion to

withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738 (1967),” if,

after careful review of the record, he or she believes “the appeal presents no issue of even

arguable merit.” Our “inquiry when counsel submits an Anders brief is thus twofold: (1)

whether counsel adequately fulfilled the rule’s requirements; and (2) whether an



   2
      We note that Jenkins filed an untimely pro se brief in response to counsel’s Anders
brief. That brief, however, even if we were to consider it, fails to identify any
nonfrivolous issues to be raised on appeal.

                                             3
independent review of the record presents any nonfrivolous issues.” United States v.

Youla, 241 F.3d 296, 300 (3d Cir. 2001).

                                             III.

       In his Anders brief, Jenkins’s counsel identifies a single potential issue for appeal

– whether Jenkins’s sentence is valid – but concludes that raising it would be frivolous.

After Booker, a sentencing court must (1) calculate the Guidelines range as it would have

done prior to Booker, (2) formally rule on the parties’ motions, elect whether to grant a

departure, and state how any such departure affects the Guidelines range calculation, and

(3) exercise its discretion in selecting a reasonable sentence based on its consideration of

the § 3553(a) factors. United States v. Gunter, 527 F.3d 282, 285 (3d Cir. 2008) (citation

omitted).

       We agree with counsel that the District Court faithfully followed these

requirements. First, the Court properly calculated the appropriate Guidelines range. That

range was based on the Court’s finding that Jenkins was personally responsible for

distributing more than fifty grams of crack. In making that finding, the Court considered

evidence concerning the quantity of crack that was recovered by police, the quantity of

crack that Jenkins periodically was given to distribute, and the period of time over which

Jenkins was involved in distributing crack. The record amply supports the Court’s

finding that Jenkins was personally responsible for distributing more than fifty grams of

crack. Thus, any argument that the Court erred in calculating the Guidelines range would



                                              4
be frivolous.

       Second, neither Jenkins nor the government moved for a formal departure, and the

District Court did not grant a departure. Therefore, any argument that the Court failed to

adhere to the second Gunter requirement would be frivolous.

       Finally, the District Court properly exercised its discretion by giving “meaningful

consideration” to the § 3553(a) factors. Gunter, 527 F.3d at 284 (citation omitted). In

fact, based on its consideration of one such factor – the need to avoid unwarranted

sentence disparities among similarly-situated defendants, see § 3553(a)(6) – the Court

granted a sixty-three month downward variance, resulting in a sentence (199 months) well

below the bottom of the applicable Guidelines range (262 months).

       We are satisfied that counsel has “adequately fulfilled the rule’s requirements,”

and based upon our “independent review of the record,” we agree that there are no

nonfrivolous issues to be raised on appeal. Youla, 241 F.3d at 300.

                                            IV.

       For the foregoing reasons, we will affirm the judgment of sentence and grant

counsel’s motion to withdraw.




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