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


6-4-2009

USA v. Corey McGill
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4070




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"USA v. Corey McGill" (2009). 2009 Decisions. Paper 1232.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1232


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                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                                 No. 08-4070
                                 ____________

                       UNITED STATES OF AMERICA

                                       v.

                               COREY MCGILL,
                                a/k/a SUPREME,

                              COREY MCGILL,
                                           Appellant.

                                 ____________

                 On Appeal from the United States District Court
                          for the District of New Jersey
                             (D.C. No. 07-cr-00255)
                  District Judge: Honorable William H. Walls
                                  ____________

                   Submitted Under Third Circuit LAR 34.1(a)
                                 June 2, 2009

         Before: McKEE, HARDIMAN and GREENBERG, Circuit Judges.

                              (Filed: June 4, 2009)

                                 ____________

                           OPINION OF THE COURT
                                ____________

HARDIMAN, Circuit Judge.
       Corey McGill pleaded guilty to a two-count superseding information charging him

with conspiring to tamper with a witness through force in violation of 18 U.S.C.

§ 1512(k) and knowing possession of a firearm during and in relation to a crime of

violence in violation of 18 U.S.C. § 924(c)(1)(A)(i). The District Court imposed a

within-Guidelines sentence of 211 months imprisonment and McGill filed this timely

appeal.

       Counsel for McGill has moved to withdraw pursuant to Anders v. California, 386

U.S. 738 (1968). After receiving a copy of his counsel’s request to withdraw, McGill

declined to submit a pro se brief in response. We will grant counsel’s motion and affirm

the District Court’s imposition of sentence.   1



       Because we write exclusively for the parties, who are familiar with the facts and

proceedings below, we will not revisit them here.

       When counsel files a motion pursuant to Anders, we determine whether: (1)

counsel adequately fulfilled the Anders requirements, and (2) an independent review of

the record presents any nonfrivolous issues. United States v. Marvin, 211 F.3d 778, 780

(3d Cir. 2000).

       To meet the first prong, appointed counsel must examine the record, conclude that

there are no nonfrivolous issues for review, and request permission to withdraw. United




       1
       We exercise jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a).

                                               2
States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Counsel must accompany a motion to

withdraw with a “brief referring to anything in the record that might arguably support the

appeal.” Anders, 386 U.S. at 744. Counsel need not raise and reject every possible claim,

but must, at a minimum, meet the “conscientious examination” standard set forth in

Anders. Youla, 241 F.3d at 300.

       McGill’s counsel filed a motion to withdraw and an Anders brief, asserting that

she “made a thorough and conscientious review of the record” revealing no appealable

issues, because McGill cannot contest the validity of his guilty plea, nor can he identify

any error at sentencing. With specific regard to sentencing, McGill’s counsel notes that

the only possible issue on appeal is that the District Court may have abused its discretion

by choosing not to depart downward pursuant to Section 4A1.3(b) of the United States

Sentencing Guidelines because McGill’s criminal history category substantially

overrepresented the seriousness of his criminal history.

       As McGill’s counsel concedes, this argument is without merit. First, we lack

jurisdiction over such discretionary decisions. See United States v. Cooper, 437 F.3d 324,

332 (3d Cir. 2006). Jurisdiction only arises if the district court’s refusal to depart

downward is based on the mistaken belief that it lacks discretion to do so. See United

States v. Dominguez, 296 F.3d 192, 194-95 (3d Cir. 2002). Even assuming arguendo that

jurisdiction lies in this case, the record clearly demonstrates that the District Court

properly considered McGill’s arguments at sentencing concerning his criminal history.



                                               3
The Court calculated McGill’s criminal history category to be VI based on his 22 criminal

history points, and noted that McGill also qualified as a career offender. The District

Court, in great detail, lamented McGill’s extensive criminal history, which includes

convictions for: unlawful possession of a weapon; terroristic threats; mischief; joyriding;

contempt; resisting arrest; threatening to kill; possession with intent to distribute heroin

and cocaine within 1,000 feet of school property; and now, conspiracy to tamper with a

witness by physical force. In light of this extensive criminal record, the court properly

concluded that the career offender classification did not overrepresent McGill’s criminal

history. Because there is “no evidence that the District Court misapplied the sentencing

guidelines or imposed a sentence in violation of the law,” we hold that counsel’s

discussion of the reasons why no appealable issue exists meets the requirements of the

first prong of Anders.

       As for the second prong of Anders, we have independently reviewed the record

and we agree with counsel’s comprehensive analysis as to why no appealable issue exists.

The District Court’s lucid analysis of McGill’s prior crimes, his circumstances, and the

goals of sentencing were more than adequate.

       Accordingly, we will affirm the judgment of the District Court and, in a separate

order, granting counsel’s motion to withdraw.




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