                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-23-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1291




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                                                NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                         No. 02-1291




              UNITED STATES OF AMERICA

                              v.

                    KEITH SCHAEFFER,
                                   Appellant




        On Appeal from the United States District Court
             for Eastern District of Pennsylvania
                  (D.C. No. 01-cr-00093-8)
            District Judge: Hon. Stewart Dalzell


          Submitted Under Third Circuit LAR 34.1(a)
                      October 14, 2003

   Before: SLOVITER, ROTH, and CHERTOFF, Circuit Judges

                   (Filed October 23, 2003)




                 OPINION OF THE COURT
SLOVITER, Circuit Judge.

       Keith Schaeffer pled guilty to three counts of a 32-count indictment returned

against him and his eight co-defendants. The counts to which Schaeffer pled guilty were

(1) conspiracy to operate a “chop shop” and to remove and alter Vehicle Identification

Numbers (VINs) and to possess vehicles with altered VINs with intent to sell, in violation

of 18 U.S.C. § 371 (Count 1), (2) illegally altering and removal of a VIN from a

motorcycle and aiding and abetting, in violation of 18 U.S.C. §§ 511 and 2 (Count 2), and

(3) possession of motorcycles with altered VINs with the intent to sell and aiding and

abetting, in violation of 18 U.S.C. § 2321 and 2 (Count 18).

       Schaeffer entered into a written plea agreement that gave the Government the

discretion to make whatever sentencing recommendation it deemed appropriate and gave

it the right to comment on the evidence and circumstances of the case and to bring to the

court’s attention all facts relevant to sentencing. Schaeffer and the Government entered

into a number of stipulations under the Sentencing Guideline Manual, effective

November 1, 1998, which included a stipulation that Schaeffer’s base offense level was 8;

the retail value of the motor vehicles and parts exceeded $70,000 but was less than

$120,000, thereby increasing Schaeffer’s adjusted offense level by six; the loss was

caused in furtherance of the criminal activity jointly undertaken by Schaeffer and his co-

conspirators and was within the scope of the defendant’s agreement, and the amount of

the loss was reasonably foreseeable to Schaeffer in connection with the conspiracy; and



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his guideline range should be calculated based on this amount pursuant to Guideline

section 1B1.3.

       The parties also stipulated that Schaeffer was in the business of receiving and

selling stolen property, which increases the adjusted offense level by two. However, he

was given credit for acceptance of responsibility which entitled him to a two-level

reduction. Because he had assisted authorities in the investigation and prosecution of his

own misconduct, Schaeffer was given an additional one-level downward adjustment. The

Government had not undertaken to file a § 5K1.1 motion, and did not do so. The District

Court accepted the presentence investigation report (PSI). Schaeffer was sentenced to 22

months’ imprisonment, which was within the applicable guideline range of 18 to 24

months.

       Counsel for Schaeffer has filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967). Under Anders, if counsel is convinced after conscientious investigation that

the appeal is frivolous, counsel may properly ask to withdraw while filing a brief referring

to anything in the record that might arguably support the appeal. See id. 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 this case, counsel has concluded that there are not properly presented and

preserved issues on which he could reasonably base an argument to secure meaningful



                                             3
appellate review and/or relief for Schaeffer. He notes that Schaeffer essentially asserts

three claims for appeal: that he should receive a reduction for being a minor participant in

the conspiracy; that he should be entitled to a § 5K1.1 motion for reduction of sentence

because he cooperated with the Pennsylvania State Police; and that the amount of the

restitution for which he should be held responsible is one-fourth of the amount imposed

by the court.

       As noted in the Anders brief, Schaeffer’s counsel did not file an objection to the

PSI nor did he raise any issue regarding the applicable sentencing guidelines. Counsel

explains why the issues that Schaeffer asserts would not be persuasive. Counsel has

therefore fulfilled his obligation under Anders to assert the relevant issues and explain his

reasons why they are not persuasive.

       Schaeffer, as authorized under Anders, has filed a pro se brief to be considered in

addition to that filed by counsel. After Schaeffer received the Government brief,

Schaeffer filed a responsive brief in which he withdrew several of the arguments raised in

his initial pro se brief but emphasizes four arguments. Counsel’s brief and Schaeffer’s

two briefs, taken together, are sufficient to guide our review of the record.

       In Schaeffer’s responsive brief, he contends first that the amount of restitution that

the court ordered him to pay should be divided equally between him and his co-

defendants who participated in the theft of the five motorcycles for which he was

indicted. We find this argument unpersuasive.



                                              4
       The District Court imposed a direction that Schaeffer pay restitution in the amount

of $40,695 because Schaeffer was involved in the theft of five separate motorcycles.

Although he pled guilty only to charges for two incidents of motorcycle theft, we have

held that a district court may hold each co-conspirator jointly and severally liable for the

full amount of the loss in order to permit victims to recover losses for all or some of the

defendants. See United States v. Diaz, 245 F.3d 294, 312 (3d Cir. 2001); United States v.

Hunter, 52 F.3d 489, 494-95 (3d Cir. 1995). The value of the five motorcycles in the list

presented to the District Court totaled $40,695. Although the District Court did not

expressly state that its restitution order as to Schaeffer was based on its imposition of

joint and several liability, it is evident that it was because the PSI, which the Court

adopted, as well as Schaeffer’s guilty plea agreement stated that the fraud loss was caused

in furtherance of jointly undertaken criminal activity by Schaeffer and his co-conspirators

and was reasonably foreseeable. Nonetheless, as we are remanding, we will direct the

District Court to make explicit its intention with respect to joint and several liability.

       Next, Schaeffer argues in his pro se brief that the District Court committed plain

error by failing to find that his prior offenses of August 1997 were related. Essentially,

this argument is that the PSI incorrectly assessed three criminal history points for his prior

offenses described in ¶¶ 37, 38 and 39 of the PSI. Schaeffer claims that these offenses

stem from the same arrest and therefore they should have been assessed only one point,

not three. Initially the Government argued that there was no error because under our



                                               5
precedent in United States v. Hallman, 23 F.3d 821, 824-25 (3d Cir. 1994), prior

sentences are by definition unrelated for purposes of § 4A1.2 if the offenses were

separated by an intervening arrest. The Government concedes, after examining the

criminal files for these cases in Berks County, that the offenses were not separated by

intervening arrests as the PSI indicates. Therefore, Schaeffer is correct in his argument

that he should be assessed only one, not three, criminal history points. The Government

argues that this would not change Schaeffer’s criminal history category because he would

remain in criminal history category III.

       However, Schaeffer argues that his criminal history category would indeed change

because he was assigned one point toward his criminal history for harassment when he

should not have been. Schaeffer’s theory is that harassment is a summary offense which

carries only a $300 fine rather than any probation or incarceration. The Government

responds that under § 4A1.2(c) of the Sentencing Guidelines, all sentences for

misdemeanors and petty offenses are to be counted, with the exception of certain listed

offenses “and offenses similar to them.” The offense of harassment is not specifically

listed as one of the exceptions. Thus, the question is whether it is “similar” to one of the

listed exceptions. We note that this court in United States v. Elmore, 108 F.3d 23 (3d Cir.

1997), found that harassment (under Pennsylvania law) was not similar to the listed

offense of disorderly conduct.

       The Government argues that the crimes that are on the list are not directed against



                                              6
other persons or crimes of violence, such as the crime of disorderly conduct, or public

order offenses. It therefore argues that the District Court properly counted Schaeffer’s

harassment offense in calculating his criminal history. We believe that the issue is not as

clear cut as the Government asserts. Some of the listed offenses could be directed at

other persons, such as resisting arrest or certain motor vehicle violations. The District

Court did not consider this issue because Schaeffer pled guilty. We believe that this issue

should be considered in the first instance by the District Court, which can, if appropriate,

revise Schaeffer’s sentence accordingly.

       Finally, Schaeffer claims ineffective assistance of counsel. As this court has stated

numerous times, we generally do not hear claims of ineffective assistance of counsel on

direct appeal as the record on that issue is ordinarily incomplete. See United States v.

Thornton, 327 F.3d 268, 271 (3d Cir. 2003).

       Accordingly, for the reasons set forth above, we will affirm the judgment of

conviction but will remand this matter to the District Court for its reconsideration of the

judgment of sentence. We offer no opinion on the latter.




TO THE CLERK:

              Please file the foregoing opinion.


              /s/ Dolores K. Sloviter
              Circuit Judge



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