United States v. Albert Clemons

• Court: Court of Appeals for the Third Circuit
• Decided: January 27, 2025
• Docket: 23-1879
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 23-1879 ____________

UNITED STATES OF AMERICA

v.

ALBERT CLEMONS, Appellant ____________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2:16-cr-00076-002) District Judge: Honorable Nora Barry Fischer ____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 21, 2025

Before: HARDIMAN, McKEE, and AMBRO, Circuit Judges

(Filed: January 27, 2025) ___________

OPINION ____________

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.

Albert Clemons appeals the District Court’s judgment. Counsel for Clemons has

filed a brief and moved for permission to withdraw pursuant to Anders v. California, 386

U.S. 738 (1967). We will grant counsel’s motion to withdraw and affirm the judgment.

I

In April 2016, Clemons was indicted in federal court for committing bank robbery,

armed bank robbery, and firearms offenses in March 2016. Citing Clemons’s three prior

Pennsylvania robbery convictions dating back to 1983, Count Five of the indictment

charged Clemons as a felon in possession of a firearm and ammunition in violation of 18

U.S.C. § 922(g)(1) and the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).

ACCA mandates a minimum sentence of fifteen years if the defendant has three prior

“violent felony” convictions “committed on occasions different from one another.” 18

U.S.C. § 924(e)(1). Clemons pleaded guilty to each count against him without any plea

agreement.

At sentencing, the District Court found that Clemons was a career offender under

the United States Sentencing Guidelines with an advisory Guidelines range of 294 to 346

months’ imprisonment. The Court granted Clemons a substantial downward variance,

sentencing him to 180 months’ imprisonment and five years’ supervised release. He

timely appealed.

Clemons’s counsel has submitted an Anders brief, stating he found no

nonfrivolous grounds for appeal. The Court notified Clemons that he could file a pro se

brief in support of his appeal, but he did not do so.

2 II

Anders requires us to determine whether defendant’s counsel “thoroughly

examined the record in search of appealable issues” and “explain[ed] why the issues are

frivolous.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). If so, we must

confirm that nothing in the record “might arguably support the appeal.” Anders, 386 U.S.

at 744. If no nonfrivolous issues exist, we will grant counsel’s Anders motion and dispose

of the appeal. 3d Cir. L.A.R. 109.2(a) (2011).

III

The Anders brief in this case recognizes three potential issues based on Clemons’s

open guilty pleas: (1) the District Court’s jurisdiction, (2) the validity of the pleas, and

(3) the reasonableness and legality of the sentence. See United States v. Broce, 488 U.S.

563, 569 (1989).

The District Court had jurisdiction under 18 U.S.C. § 32311 as Clemons was

charged with violating 18 U.S.C. § 2113(a) and (d), § 924(c)(A)(i) and (ii), § 922(g)(1),

and § 924(e)—all federal offenses.

Clemons’s guilty pleas were valid. He entered knowing and voluntary pleas after a

comprehensive colloquy with the Court. The sentencing judge confirmed Clemons’s

competence, advised him of his constitutional rights and the potential consequences of

waiving those rights, and ensured there was a factual basis for the plea. The Court also

confirmed that Clemons understood the charges, the penalties he faced, and the rights he

1 We have jurisdiction under 28 U.S.C. § 1291.

3 was waiving. The Court satisfied Rule 11 of the Federal Rules of Criminal Procedure and

the Constitution. Thus, there is no nonfrivolous basis to challenge his guilty pleas.

Clemons’s sentence was procedurally and substantively reasonable and lawfully

imposed. The District Court complied with the process outlined in United States v.

Gunter, 462 F.3d 237, 247 (3d Cir. 2006), and met the requirements of Rule 32 of the

Federal Rules of Criminal Procedure. Clemons received and reviewed the Presentence

Investigation Report and addenda. And the Court resolved Clemons’s objection to

application of the ACCA in his favor, after addressing his objections.

The Court then calculated Clemons’s advisory Guidelines range as 294 to 346

months’ imprisonment based on his status as a career offender and provided counsel and

Clemons the opportunity to address the Court. In imposing a substantial downward

variance and sentencing Clemons to 180 months’ imprisonment, the District Court

thoughtfully considered the sentencing factors in 18 U.S.C. § 3553(a). The Court

recognized the seriousness of the offenses and acknowledged Clemons’s age (over 70),

harsh conditions he suffered in detention during the pandemic, his efforts in detention to

improve himself, and his remorse.

Although Clemons objected to his status as a career offender under the Guidelines,

by the time counsel filed the Anders brief, this Court had issued its decision in United

States v. Henderson, 80 F.4th 207 (3d Cir. 2023). That decision held that 18 Pa. Cons.

Stat. § 3701(a)(1)(ii)—the same Pennsylvania robbery statute under which Clemons was

thrice convicted—is a “crime of violence” as defined by USSG § 4B1.2(a) for the career

offender guideline. See United States v. Henderson, 80 F.4th at 209. Clemons’s challenge

4 to his career offender status is no longer arguable on the merits, and there are no

nonfrivolous issues regarding his sentence.

* * *

Counsel’s Anders brief is adequate and there are no nonfrivolous issues for appeal.

We will grant counsel’s motion to withdraw and affirm the District Court’s judgment.