United States v. Charles Swan

661 F. App'x 767
CourtCourt of Appeals for the Third Circuit
DecidedOctober 3, 2016
Docket16-1183
StatusUnpublished

This text of 661 F. App'x 767 (United States v. Charles Swan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Charles Swan, 661 F. App'x 767 (3d Cir. 2016).

Opinion

OPINION *

CHAGARES, Circuit Judge.

Charles Swan appeals his sentence imposed after his conviction for being a felon in possession of a firearm, and his counsel moves to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). For the following reasons, we will grant the motion to withdraw and affirm the District Court’s judgment.

I.

We write solely for the parties and therefore recite only the facts necessary to our disposition. On July 12, 2012, York City Police noticed Swan driving a vehicle with an expired registration. The police stopped the car, but Swan left his car and fled on foot. During the ensuing chase, Swan threw a pistol. Swan was eventually arrested, and the police recovered the firearm. Swan later admitted that the firearm was his.

An indictment was filed charging Swan with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). *769 Swan knowingly and voluntarily entered into a guilty plea agreement for the single count in the indictment. The plea agreement stated that if Swan qualified as an armed career criminal, the count carried a mandatory minimum sentence of 15 years. When Swan entered his guilty plea, the District Court asked him if he understood that if he was found to be an armed career criminal he would face a mandatory minimum sentence of 15 years. Swan stated that he understood. Prior to this conviction, Swan was convicted three times for possession with the intent to deliver cocaine under Pennsylvania law.

The District Court later held a sentencing hearing and imposed the mandatory minimum sentence of 180 months of imprisonment.

Swan filed a timely appeal. His attorney has filed a motion to be relieved pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that there are no non-frivolous issues for appeal. Swan has filed his own pro se brief.

II.

The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

When counsel files a motion to withdraw under Anders we follow a two-step process. First, we consider whether counsel has adequately fulfilled the requirements of Local Appellate Rule 109.2(a), which requires filing a brief, compliant with the requirement set forth in Anders to identify “anything in the record that might arguably support the appeal.” Anders, 386 U.S. at 744, 87 S.Ct. 1396. Second, we consider

“whether an independent review of the record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). If our review reveals any merit to the appeal, we appoint substitute counsel, order supplemental briefing, and restore the case to the calendar.

III.

On appeal, defense counsel and the Government argue that there are no remaining issues of merit. In his pro se briefing, Swan challenges his sentence, arguing that his three prior convictions for drug trafficking offenses do not qualify as three separate convictions that would subject him to a mandatory minimum term of imprisonment of 15 years under 18 U.S.C. § 924(e)(1). 1

In the first step of our analysis, we conclude that defense counsel’s Anders brief is inadequate. Counsel has not “scoured the record in search of appeal-able issues.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000). While counsel need not raise every possible claim of error, counsel must “adequately attempt[ ] to uncover the best arguments for his or her client.” Id. at 781. Counsel has not.

In his Anders brief, defense counsel does not identify the issue raised by Swan in his pro se briefing: whether Swan’s convictions for possession with the intent to deliver cocaine on July 19 and 23, 1999 were offenses “committed on occasions different from one another” under the ACCA. 18 U.S.C. § 924(e)(1). Nor does defense counsel address the additional issues discussed by the Government: whether the guilty plea was knowing and voluntary, and whether the sentence was procedurally and substantively reasonable.

*770 ■ However, the fact that the Anders brief is inadequate does not end our review. At the second step of our analysis, we conclude that the appeal is frivolous. Therefore, for the reasons below, -we will allow counsel to withdraw.

We have set forth a three-step framework for district courts to follow when sentencing a defendant. See United States v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc). First, a district court must calculate a guidelines sentence as it would have been prior to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Id. Second, the district court must formally rule on any motions for departure and state how that departure affects the guidelines calculation. Id. Third, the district court must exercise discretion by considering relevant 18 U.S.C. § 3553(a) factors regardless of whether it varies from the guidelines sentence. Id.

Swan challenges the District Court’s determination at step one of his sentencing—the finding that he is an armed career criminal under § 924(e). We have unequivocally determined that á conviction under Pennsylvania law “for possession with intent to distribute cocaine is a ‘serious drug offense’ and properly serve[s] as a predicate offense for the imposition of the fifteen-year minimum sentence under the ACCA.” United States v. Abbott, 748 F.3d 154, 160 (3d Cir. 2014) (quoting 18 U.S.C. § 924(e)). Swan has been convicted of possession with the intent to distribute cocaine at least three times under Pennsylvania law, so he qualifies as an. armed career criminal' under § 924(e). See id. In 2006, Swan was convicted of possession with intent to deliver cocaine.

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
United States v. Booker
543 U.S. 220 (Supreme Court, 2004)
Brown v. United States
636 F.3d 674 (Second Circuit, 2011)
United States v. David D. Schoolcraft
879 F.2d 64 (Third Circuit, 1989)
United States v. Joe Sherman Maxey
989 F.2d 303 (Ninth Circuit, 1993)
United States v. Donald Wayne Marvin
211 F.3d 778 (Third Circuit, 2000)
United States v. Conrad Blair
734 F.3d 218 (Third Circuit, 2013)
United States v. Kevin Abbott
748 F.3d 154 (Third Circuit, 2014)
United States v. Jose Flores-Mejia
759 F.3d 253 (Third Circuit, 2014)

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661 F. App'x 767, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-charles-swan-ca3-2016.