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


11-3-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1806




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"USA v. Hohney" (2008). 2008 Decisions. Paper 275.
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                                                       NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 06-1806



                UNITED STATES OF AMERICA

                                 v.

                       FLOYD HOHNEY,
                         a/k/a/ “Skeete”

                          Floyd Hohney,
                                Appellant



          On Appeal from the United States District Court
                  for the District of New Jersey
                (D.C. Crim. No. 03-cr-00228-13)
               District Judge: Hon. Freda Wolfson



            Submitted Under Third Circuit LAR 34.1(a)
                        October 30, 2008

Before: SLOVITER, STAPLETON and TASHIMA*, Circuit Judges

                    (Filed November 3, 2008)


                             OPINION


      *
               Hon. A. Wallace Tashima, Senior Circuit Judge,
               United States Court of Appeals for the Ninth Circuit,
               sitting by designation.
SLOVITER, Circuit Judge.

       Appellant Floyd Hohney was convicted pursuant to a guilty plea of conspiracy to

distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. §§

841(a)(1) and 841(b)(1)(A) and possession of a weapon by a convicted felon in violation

of 18 U.S.C. § 922(g)(1). Hohney has filed an appeal. Counsel for Hohney has filed a

motion to withdraw and submitted a brief pursuant to Anders v. California, 386 U.S. 738

(1967). Hohney was advised of his right to file a pro se brief in this court, but he has not

done so. Because Hohney has waived his right to appeal after being fully informed of the

consequences, we will affirm and grant counsel’s motion to withdraw.

       Under Anders, if, after review of the district court record and a conscientious

investigation, counsel is convinced that the appeal presents no issue of arguable merit,

counsel may properly ask to withdraw while filing a brief referring to anything in the

record that might arguably support the appeal. See Anders, 386 U.S. at 741-42, 744. To

satisfy the Anders requirements, appellant’s counsel must “satisfy the court that he or she

has thoroughly scoured the record in search of appealable issues” and then “explain why

the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000).

       In order to fulfill our obligation to decide whether to accept counsel’s Anders brief

and permit counsel to withdraw, we review not only the brief itself but the record on

appeal, in particular the colloquy held by the District Court to determine whether the

guilty plea was entered knowingly and voluntarily, and whether the defendant’s waiver of

his right to indictment was knowing and voluntary.

                                              2
       The District Court conducted an extensive plea colloquy with Hohney on April 15,

2004. The prosecution recited the terms of the plea agreement. He noted that in the plea

agreement, Hohney agreed that the conspiracy in which he was involved distributed at

least 500 grams but not more than 1.5 kilograms of cocaine base, that he was a career

offender, and that he was a minor participant. In response to the Court’s inquiry, Hohney

agreed that the summary of the terms of the plea agreement was accurate, that he read the

plea agreement, and that he signed it after discussing the terms with his counsel.

       Thereafter, the Court set forth the penalties for each of the counts to which Hohney

pled guilty, i.e., under Count 1, the conspiracy charge, a statutory mandatory minimum of

ten years imprisonment and a maximum penalty of life imprisonment and a maximum

fine of $4,000,000, and under Count 34, the weapons charge, a maximum sentence of ten

years. The Court systematically reviewed with Hohney the Sentencing Guidelines and its

obligation to take into account, inter alia, the conduct in which Hohney engaged, the

victim of his offense, and the role that he played. The Court’s colloquy included the

statement that under the plea agreement Hohney waived his right to trial. Even after the

colloquy and the government’s review of the plea agreement, which included a waiver of

the right to appeal, the District Court reviewed the allegations of the offense with Hohney

and the identity of his co-conspirators, as well as the identity of the firearms and

ammunition possessed by Hohney. Hohney acknowledged his guilt of the crimes charged

in the two counts to which he pled guilty. Thereafter, the District Court made a finding

that Hohney is competent and capable of entering into the informed plea, that he is aware

                                              3
of the nature of the charges and the consequences of the plea, and that the plea of guilty is

a knowing and voluntary plea supported by an independent basis in fact containing each

of the essential elements of the offenses. The District Court then accepted the guilty plea

and adjudged Hohney guilty of Counts 1 and 34 of the superseding indictment. Although

Hohney was subject to a guideline range of 262 to 327 months imprisonment, the Court

sentenced Hohney to imprisonment for a term of 180 months.

       In his Anders brief, counsel reviewed the facts, noted the waiver of appeal, and set

forth that this court has held that a waiver of appeal is generally enforceable if it was

“entered into knowingly and voluntarily, unless [it] work[s] a miscarriage of justice.”

United States v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001). We reconfirmed that holding

in our subsequent opinion in United States v. Lockett, 406 F.3d 207, 213 (3d Cir. 2005).

       We are satisfied that counsel has made the conscientious examination required by

Anders, and our independent examination leads us to agree with counsel that the appeal

does not present any non-frivolous issues for review. For the reasons set forth, we will

dismiss the appeal and grant counsel’s motion to withdraw.




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