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


3-31-2009

USA v. Timothy Hartwell
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1551




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                 Nos. 08-1551 / 08-1806


                           UNITED STATES OF AMERICA

                                            v.

                               TIMOTHY HARTWELL,

                                                 Appellant



                     Appeal from the United States District Court
                             for the District of New Jersey
          (D.C. Criminal Action Nos. 3-06-cr-00573-007 / 3-07-cr-00875-001)
                      District Judges: Honorable Joel A. Pisano


                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 27, 2009


              Before: RENDELL, AMBRO, and JORDAN, Circuit Judges

                            (Opinion filed March 31, 2009 )



                                       OPINION

AMBRO, Circuit Judge

      Timothy Hartwell pled guilty in the United States District Court for the District of

New Jersey to conspiring knowingly and intentionally to distribute, and to possess with
intent to distribute, 500 grams or more of a mixture and substance containing a detectable

amount of cocaine. Hartwell was sentenced to 60 months’ imprisonment, the statutory

minimum for the offense, and four years’ supervised release. He now appeals his

sentence and the District Court’s denial of his motion to proceed pro se. Hartwell’s

attorney has moved to withdraw his representation under Anders v. California, 386 U.S.

738 (1967). We grant the motion to withdraw and affirm the District Court’s orders.1

       Because we write solely for the parties, we recount only the facts necessary to our

decision. In March 2006, the Drug Enforcement Agency launched an investigation in the

Phillipsburg, New Jersey area. In July 2006, as a result of the investigation, Hartwell was

arrested along with a number of persons with whom he allegedly worked as a narcotics

trafficker. He was initially charged on two counts: (1) knowingly and intentionally

conspiring with his codefendants to distribute, and to possess with intent to distribute, 50

grams or more of a mixture and substance containing cocaine base in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A), and 21 U.S.C. § 846, and (2) knowingly and intentionally

distributing, and possessing with intent to distribute, 50 grams or more of a mixture and

substance containing cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and

18 U.S.C. § 2.

       In October 2007, Hartwell pled guilty to a different charge—knowingly and

intentionally conspiring to distribute, and possess with intent to distribute, 500 grams or



       1
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

                                              2
more of a mixture and substance containing a detectable amount of cocaine, in violation

of 21 U.S.C. §§ 841(a)(1), (b)(1)(B). The District Court accepted the guilty plea after an

extended plea colloquy.

       As part of his plea agreement, Hartwell stipulated to an offense level under the

Sentencing Guidelines of 23. In addition, he waived his right to appeal his conviction so

long as the sentence fell within or below the Guidelines range corresponding to that

offense level.

       Following sentencing, Hartwell appealed to this Court. As noted, his attorney

made a motion to withdraw his representation and filed a corresponding Anders brief.

Hartwell did not file a pro se brief.

       Our rules provide that “[w]here, upon review of the district court record, trial

counsel is persuaded that the appeal presents no issue of even arguable merit, counsel

may file a motion to withdraw and supporting brief pursuant to Anders.” 3d Cir. LAR

109.2(a). If we concur with trial counsel’s assessment, then we “will grant [the] Anders

motion, and dispose of the appeal without appointing new counsel.” Id. Accordingly, our

“inquiry when counsel submits an Anders brief is . . . twofold: (1) whether counsel

adequately fulfilled the rule’s requirements; and (2) whether an independent review of the

record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d

Cir. 2001).

       In his Anders brief, Hartwell’s attorney identifies three potential issues for appeal:

(1) whether the guilty plea was knowing and voluntary; (2) whether the sentence was

                                              3
reasonable; and (3) whether Hartwell was denied his right to proceed pro se. We agree

that none of these grounds for appeal has legal merit.

       We are satisfied that Hartwell’s guilty plea was knowing and voluntary. During

his plea hearing, the Court questioned him extensively on topics concerning his personal

background and current mental state, the judicial proceedings up to that point, his

relationship with his attorney, the plea agreement, and his understanding that a guilty plea

affects his right to a jury trial and his sentencing. In addition, the Court carefully

explained the Sentencing Guidelines and procedure that would be used to determine

Hartwell’s sentence. That was sufficient to satisfy the requirements of Federal Rule of

Criminal Procedure 11(b). See United States v. Schweitzer, 454 F.3d 197, 202–03 (3d

Cir. 2006).

       We also agree that the sentence imposed was reasonable. The Court adopted the

presentence investigation report that was accepted by both parties, gave meaningful

consideration to the pertinent 18 U.S.C. § 3553(a) factors, and then imposed the

mandatory minimum sentence, which fell within the Guidelines range. That is all our

case law requires. See United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006).

       Lastly, we agree that the District Court did not err in denying Hartwell’s motion to

proceed pro se. The record indicates that Hartwell withdrew the motion orally in open

court and that the District Court denied it as a formality. Thus, Hartwell was not

wrongfully denied his right to proceed pro se.

       Counsel adequately fulfilled the requirements of Anders. Because our independent

                                               4
review of the record fails to reveal any nonfrivolous grounds for appeal, we grant the

counsel’s motion to withdraw and affirm the judgment entered by the District Court. In

addition, we certify that the issues presented in this appeal lack legal merit and thus that

counsel is not required to file a petition for writ of certiorari with the Supreme Court. 3d

Cir. LAR 109.2(b).




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