United States v. Craig

343 F. App'x 766
CourtCourt of Appeals for the Third Circuit
DecidedSeptember 3, 2009
DocketNo. 07-4750
StatusPublished

This text of 343 F. App'x 766 (United States v. Craig) 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. Craig, 343 F. App'x 766 (3d Cir. 2009).

Opinion

[767]*767OPINION

POLLAK, District Judge.

I.

Ryan J. Craig (“Craig”) has filed a pro se brief in this appeal from his conviction of two counts of wire fraud in violation of 18 U.S.C. § 1341 and one count of failure to appear at trial in violation of 18 U.S.C. § 3146. His current counsel has moved for permission to withdraw from representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,18 L.Ed.2d 493 (1967). We conclude that counsel has fulfilled the requirements of Third Circuit Local Appellate Rule 109.2(a) and that an independent review of Craig’s pro se brief as well as the record has failed to reveal any additional non-frivolous issues. We accordingly will grant defense counsel’s motion to withdraw and will affirm the District Court’s judgment.

II.

We write primarily for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.

The government presented evidence showing that Craig sold non-existent merchandise through e-Bay, an internet auction website that serves as a clearinghouse for individual sellers to list items for sale.1 Craig used his grandmother’s personal identification information to establish a seller’s account on e-Bay. Craig, with the help of accomplices, then sold items using this account, keeping the proceeds from the completed sales — which were paid to him by way of Western Union money orders — without delivering the goods promised to their respective buyers.

David Carlson, a fraud investigation supervisor employed by e-Bay, testified for the government that in order to set up an account on the e-Bay website, a user must provide a street address, a phone number, and an e-mail address. (App.132-33.) Carlson also testified that Craig supplied e-Bay with two credit card numbers, registered to his grandmother, which could be used to bill the user account for service charges associated with using e-Bay. (App. 139-140.) At the time of Craig’s arrest, police recovered from Craig a blank Western Union form and a piece of paper containing his grandmother’s name, date of birth, social security number, credit card numbers, and bank account information.

Following the jury’s verdict, the Probation Office prepared a Pre-Sentence Investigation Report (“PSR”) proposing a recommended Sentencing Guidelines range of 100-125 months of incarceration, reflecting a total offense level of 24 and a criminal history category of VI.2 To arrive at that total offense level, the PSR applied the following guidelines adjustments: an eight-level enhancement for a loss amount exceeding $70,000 but not more than $120,000, pursuant to U.S.S.G. § 2Bl.l(b)(l)(E); a four-level enhancement for 50 or more victims, pursuant to § 2B1.1(b)(2)(B); a two-level enhancement for unauthorized use of any means of identification to produce another means of identification, pursuant to § 2Bl.l(b)(9)(C)(i); and a two-level enhancement for role as leader, pursuant to § 3B1.1.

[768]*768Craig objected to the sentencing enhancements. The District Court sustained Craig’s objections in part, determining that the number of victims should be reduced to 14 (reducing the applicable sentencing enhancement from four points to two points) and that the loss amount should be reduced to more than $10,000 but less than $30,000 (reducing the applicable sentencing enhancement from eight points to four points). The District Court overruled Craig’s other objections and thus found a total offense level of 18 with a criminal history category of VI, resulting in a guidelines range of 57-71 months of incarceration. The District Court sentenced Craig to 71 months: fifty-nine months for each wire fraud conviction, to be served concurrently, and 12 months for the failure to appear conviction, to be served consecutively to the wire fraud sentences.

III.

Appellant’s counsel has moved this Court for leave to withdraw because, in counsel’s view, appellant appears to lack any issue of arguable merit. See Local Appellate Rule 109.2; Anders,3 Appellant, meanwhile, has filed a separate brief pro se in support of his appeal. We exercise jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

If a criminal defendant wishes to appeal but counsel, after thorough review of the record, cannot find any appealable issue, counsel may file what is known as an Anders brief. Local Appellate Rule 109.2(a) reflects the Third Circuit’s implementation of Anders:

Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 ¿.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing.

In assessing an Anders brief, we must determine: “(1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an independent review of the record presents any non-frivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001) (explaining L.A.R. 109.2(a)) (citations omitted).

We first examine whether counsel fulfilled the requirements of Rule 109.2(a) and then turn to the issue of our independent review. As Rule 109.2(a) reflects, “[t]he duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined the record in search of appealable issues, and (2) to explain why the issues are frivolous.” Youla, 241 F.3d at 300. Counsel’s Anders brief satisfies both of these requirements. “Counsel need not raise and reject every possible claim” but need only satisfy the “conscientious examination” standard set forth in Anders. Id. We are satisfied that [769]*769counsel has met this standard. Counsel diligently searched the record for any potentially appealable issues and, in fourteen pages of careful analysis, supported his claims of frivolousness with citations to relevant ease law. Gf id.

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
United States v. Powell
469 U.S. 57 (Supreme Court, 1984)
United States v. Hawes
523 F.3d 245 (Third Circuit, 2008)

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Bluebook (online)
343 F. App'x 766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-craig-ca3-2009.