                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-21-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1648




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"USA v. Nixon" (2006). 2006 Decisions. Paper 1233.
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                                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-1648


                           UNITED STATES OF AMERICA

                                              v.

                                  MARK A. NIXON,

                                                            Appellant


                      Appeal from the United States District Court
                        for the Western District of Pennsylvania
                       (D.C. Criminal Action No. 04-cr-00037-1)
                     District Judge: Honorable Terrence F. McVerry


                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 20, 2006

                   Before: SLOVITER and AMBRO, Circuit Judges,
                             and DuBOIS,* District Judge


                            (Opinion filed:        April 21, 2006)



                                       OPINION


AMBRO, Circuit Judge


      *
       Honorable Jan E. DuBois, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
       Mark A. Nixon pled guilty to one count of unlawful possession of a firearm by a

felon in violation of 18 U.S.C. § 922(g)(1), and was sentenced to a 120-month term of

incarceration, less 17 months for time served in state custody. Nixon’s counsel filed an

Anders motion to withdraw as counsel, asserting that all potential grounds for appeal are

frivolous. For the reasons set forth below, we grant that motion and affirm the judgment

of the District Court.1

                                             I.

       Because we write solely for the parties, we discuss only those facts necessary to

our decision. In 2003, Nixon was arrested for conduct that resulted in both a multiple-

count state indictment and a federal indictment for unlawful possession of a firearm by a

felon in violation of 18 U.S.C. § 922(g)(1). He was ultimately convicted in state court

and was sentenced to five to ten years.

       Nixon was also convicted and sentenced by the United States District Court for the

Western District of Pennsylvania after both his state sentence was pronounced and the

Supreme Court ruled in United States v. Booker, 543 U.S. 220 (2005), that the United

States Sentencing Guidelines are advisory. The District Court found that, under the

advisory Guidelines, Nixon’s adjusted offense level was 30, reduced to 27 for acceptance

of responsibility pursuant to U.S.S.G. § 3E1.1(a) and (b), and his criminal history



       1
       The District Court exercised jurisdiction over this matter pursuant to 18 U.S.C. §
3231. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

                                             2
category was VI. The resulting advisory sentencing range was 130 to 162 months, which

exceeded the statutory maximum of 120 months pursuant to 18 U.S.C. § 924(a)(2). Thus,

the advisory Guidelines sentence was 120 months. The District Court considered the

sentencing factors at 18 U.S.C. § 3553(a), used the statutory maximum of 120 months as

its starting point, and granted a 17 month downward adjustment for the time Nixon had

already served on his state court conviction. The District Court further ordered that

Nixon’s federal sentence be served concurrently with his state sentence. Nixon timely

appealed the judgment of conviction and sentence.

                                             II.

       Under Anders v. California, 386 U.S. 738 (1967), if counsel “finds [a] case to be

wholly frivolous, after a conscientious examination” of the potential grounds for appeal,

s/he should “advise the court and request permission to withdraw.” Id. at 744. This

request must be accompanied by “a brief referring to anything in the record that might

arguably support the appeal,” id., “explain[ing] to the court why the issues are frivolous,”

United States v. Marvin, 211 F.3d 778, 781 (3d Cir. 2000), and demonstrating that s/he

has “thoroughly scoured the record in search of appealable issues,” id. at 780. A copy of

counsel’s brief must be furnished to the appellant, who must be given time to raise

nonfrivolous arguments in a pro se brief. Anders, 386 U.S. at 744; Third Circuit LAR

109.2(a) (2000).

       We “confine our scrutiny to those portions of the record identified by an adequate

Anders brief . . . [and] those issues raised in Appellant’s pro se brief.” United States v.

                                              3
Youla, 241 F.3d 296, 301 (3d Cir. 2001). We do not “comb the record . . . for possible

non-frivolous issues that both the lawyer and his client may have overlooked,” as “[our]

duty is merely to determine whether counsel is correct in believing those grounds [raised

are] frivolous.” United States v. Wagner, 103 F.3d 551, 552-53 (7th Cir. 1996). We

grant counsel’s Anders motion to withdraw if we believe “that the attorney has provided

the client with a diligent and thorough search of the record for any arguable claim,”

McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988), and if we conclude

“that the appeal lacks any basis in law or fact,” id. at 438 n.10.

                                             III.

       After an independent examination of the record, including the Pre-Sentencing

Report, the sentencing transcript, and counsel’s Anders brief, it is clear that counsel has

satisfied his Anders burden and that no nonfrivolous issues from which to appeal exist.2

The District Court treated the Sentencing Guidelines as advisory, adequately considered

the § 3553(a) factors, and properly exercised its discretion in granting a downward

adjustment.

                                          *****

       Because there are no nonfrivolous issues for appeal, Nixon’s judgment of

conviction and sentence is hereby affirmed, and counsel is granted leave to withdraw.




       2
         Nixon has not filed a brief on his own behalf, despite having been informed of his
right to file a formal or informal brief. See Clerk’s Office Letter (July 29, 2005).]

                                               4
