United States v. George Graves

• Court: Court of Appeals for the Third Circuit
• Decided: March 18, 2021
• Docket: 19-2785
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 19-2785 ______________

UNITED STATES OF AMERICA

v.

GEORGE GRAVES, Appellant ______________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. No. 1:19-cr-00012-001) District Judge: Hon. Christopher C. Conner ______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) March 18, 2021 ______________

Before: SHWARTZ, MATEY, and TRAXLER, Circuit Judges.*

(Filed: March 18, 2021) ______________

OPINION** ______________

SHWARTZ, Circuit Judge.

* The Honorable William Byrd Traxler, Jr., United States Circuit Judge for the Court of Appeals for the Fourth Circuit, sitting by designation. ** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. George Graves pleaded guilty to one count of bank robbery by assault with a

dangerous weapon and was sentenced to seventy months’ imprisonment. Graves appeals

his conviction and sentence. His appellate counsel argues that his appeal presents no

nonfrivolous issues and moves to withdraw under Anders v. California, 386 U.S. 738

(1967). Because both Graves pro se and his counsel have identified no nonfrivolous

issues, we will grant the motion and affirm.

I

Graves entered an M&T Bank in Greencastle, Pennsylvania. He displayed an

apparent handgun and demanded money from a teller. The teller placed $1,969 and a

tracking device into a bag and gave it to Graves, who then exited the bank. The tracking

device led police to Graves. Officers recovered the stolen funds and a pellet gun, and

Graves confessed to the robbery.

A grand jury returned a one-count indictment for armed bank robbery in violation

of 18 U.S.C. §§ 2113(a), (d). Graves pleaded guilty without a written plea agreement,

and the District Court accepted his plea.

The Probation Office prepared a Presentence Investigation Report (“PSR”),

recommending a United States Sentencing Guidelines range of seventy to eighty-seven

months’ imprisonment, based on a total offense level of 23 and a criminal history

category of IV. Prior to sentencing, Graves moved for a downward departure pursuant to

U.S.S.G. § 5K2.12, arguing that he committed the robbery “because of serious coercion,

blackmail or duress, under circumstances not amounting to a complete defense,” due to

2 physical threats from a drug dealer who claimed that Graves had stolen his drugs. App.

30 (quoting U.S.S.G. § 5K2.12).

At sentencing, the District Court noted there were no objections to the PSR and

adopted it. The Court then denied the downward departure motion while “fully

recogniz[ing]” its discretion to depart. App. 23. After discussing the sentencing factors

under 18 U.S.C. § 3553(a), the Court sentenced Graves to seventy months’ imprisonment

and five years’ supervised release, and imposed a $100 assessment and a $300 fine.

Graves’s counsel filed an appeal on Graves’s behalf and a motion to withdraw,

asserting that there are no nonfrivolous grounds for appeal.

II1

A

“Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines the Supreme

Court promulgated in Anders to assure that indigent clients receive adequate and fair

representation.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). This rule

allows defense counsel to file a motion to withdraw and an accompanying brief pursuant

to Anders when counsel has reviewed the record and concluded that “the appeal presents

no issue of even arguable merit.” Third Cir. L.A.R. 109.2(a). When counsel submits an

Anders brief, we must determine: “(1) whether counsel adequately fulfilled the rule’s

1 We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary review to determine whether there are any nonfrivolous issues for appeal. Penson v. Ohio, 488 U.S. 75, 80 (1988). Because Graves did not object to any aspect of his conviction or sentence, we review for plain error. United States v. Flores- Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc). 3 requirements; and (2) whether an independent review of the record presents any

nonfrivolous issues.” Youla, 241 F.3d at 300 (citing United States v. Marvin, 211 F.3d

778, 780 (3d Cir. 2000)). An issue is frivolous if it “lacks any basis in law or fact.”

McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 438 n.10 (1988).

To determine whether counsel has fulfilled Rule 109.2(a)’s requirements, we

examine the brief to see if it: (1) shows that counsel has thoroughly examined the record

in search of appealable issues, identifying those that arguably support the appeal even if

“wholly frivolous,” Smith v. Robbins, 528 U.S. 259, 285 (2000); and (2) explains why

those issues are frivolous, Marvin, 211 F.3d at 780-81. If these requirements are met, the

Anders brief guides our review, and we need not scour the record. See Youla, 241 F.3d

at 300-01.

Counsel’s Anders brief satisfies both elements, and an independent review of the

record reveals no nonfrivolous issues. First, the brief demonstrates a thorough

examination of the record and identifies the District Court’s jurisdiction, the validity of

Graves’s guilty plea, and the reasonableness of his sentence. Second, the brief explains

why any challenge to Graves’s plea or sentence would be frivolous under the governing

law. Counsel’s Anders brief is therefore sufficient. Moreover, Graves himself has not

identified any such issues.

B

Graves’s counsel correctly noted that the District Court had jurisdiction to enter

the judgment of conviction and sentence. United States district courts have jurisdiction

4 over offenses against the laws of the United States. 18 U.S.C. § 3231. Graves was

charged with bank robbery with a dangerous weapon in violation of 18 U.S.C. § 2113(d),

which is a federal offense. Accordingly, there is no issue of arguable merit concerning

jurisdiction.

The record further reflects that Graves’s guilty plea was valid under the

Constitution and Federal Rule of Criminal Procedure 11.2 During the plea hearing, the

District Court confirmed Graves’s competence, ensured that he understood the charge

against him, and reviewed his constitutional rights. Specifically, the Court explained that

Graves could plead not guilty and proceed to trial with the assistance of counsel who

could confront and cross-examine witnesses, that he had a right to testify or not testify

and to subpoena witnesses, and that the jury would presume him innocent, unless the

Government proved his guilt beyond a reasonable doubt. The Court also informed

2 When a defendant enters a guilty plea, he waives various constitutional rights, and those rights must be specifically addressed during a plea hearing. Boykin v. Alabama, 395 U.S. 238, 242-44 (1969). Accordingly, Rule 11 requires that a district court advise the defendant, among other things, of

the waiver of certain constitutional rights by virtue of a guilty plea, the nature of the charges to which he or she is pleading guilty, the maximum possible penalty to which he or she is exposed, the court’s obligation to apply the Sentencing Guidelines and discretion to depart from those guidelines under some circumstances, and the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.

United States v. Schweitzer, 454 F.3d 197, 202-03 (3d Cir. 2006) (internal quotation marks, citations, and alterations omitted). The district court must also “ensure that the defendant receives these caveats, understands them, and still wishes of his or her own volition to plead guilty.” Id. at 203. 5 Graves of the penalties he faced and explained that, in its sentence, it would refer to, but

could depart from, the Guidelines range. Finally, the Court found there was a factual

basis for Graves’s guilty plea.

Graves’s counsel identified one potential issue concerning whether the plea should

have been accepted, namely whether Graves could be convicted of armed bank robbery

given that he used a pellet gun. Precedent demonstrates that the District Court properly

accepted Graves’s guilty plea. Section 2113(d) criminalizes bank robbery where the

defendant “assaults any person, or puts in jeopardy the life of any person by the use of a

dangerous weapon or device.” In McLaughlin v. United States, 476 U.S. 16 (1986), the

Supreme Court explained that an unloaded gun constitutes a dangerous weapon for

purposes of § 2113(d) because, although it cannot fire, it “is typically and

characteristically dangerous” and its display “instills fear in the average citizen . . . [so] as

a consequence, it creates an immediate danger that a violent response will ensue.” Id. at

17-18; see also United States v. Beckett, 208 F.3d 140, 152 (3d Cir. 2000) (concluding

that a fake bomb is a “dangerous weapon” under § 2113(d)); United States v. Martinez-

Jimenez, 864 F.2d 664, 666-67 (9th Cir. 1989) (toy gun); United States v. Laughy, 886

F.2d 28, 30 (2d Cir. 1989) (pellet gun); United States v. York, 830 F.2d 885, 891 (8th

Cir. 1987) (inoperable gun). Similarly, in the context of the enhancement for the use of a

dangerous weapon during a robbery under U.S.S.G. § 2B3.1, we have explained that “a

dismantled pellet gun is a dangerous weapon in its own right.” United States v. Orr, 312

F.3d 141, 143 (3d Cir. 2002); see also United States v. Bell, 947 F.3d 49, 62 (3d Cir.

6 2020) (concluding that a toy gun constitutes a dangerous weapon under § 2B3.1).

Accordingly, the District Court properly accepted Graves’s plea to violating § 2113(d)

because displaying a pellet gun “instills fear in the average citizen,” McLaughlin, 476

U.S. at 18, which satisfies the dangerous weapon element of the offense.3

Because Graves pleaded guilty knowingly and voluntarily, with an understanding

of his rights and the consequences of his plea, and there was a factual basis for his plea,

there is no issue of arguable merit concerning the plea’s validity.

Graves’s sentence is also procedurally and substantively reasonable. See United

States v. Tomko, 562 F.3d 558, 566 (3d Cir. 2009) (en banc). With respect to procedural

reasonableness, a district court must (1) calculate the applicable Guidelines range,

(2) consider departure motions, and (3) meaningfully address all relevant 18 U.S.C.

§ 3553(a) factors. See United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). The

District Court fulfilled these requirements.

First, the District Court’s Guidelines calculation was supported by the facts and

comported with the Sentencing Guidelines.4 Second, the Court considered Graves’s

3 Moreover, contrary to Graves’s pro se argument, the District Court properly accepted a four-point enhancement for “otherwise using” the pellet gun, rather than a three-point enhancement for merely “brandishing” it, because Graves pointed the pellet gun directly at bank employees while demanding money. See United States v. Johnson, 199 F.3d 123, 127 (3d Cir. 1999) (“Pointing a weapon at a specific person or group of people, in a manner that is explicitly threatening, is sufficient to make out ‘otherwise use’ of that weapon.”). 4 Graves argues pro se that the District Court erred by adding three points to his criminal history score for his 2014 criminal trespass conviction because he was never incarcerated and therefore should have only received one point for that offense. See U.S.S.G. § 4A1.1. Both the Government and Graves’s counsel correctly observe that 7 motion for a downward departure motion under U.S.S.G. § 5K2.12, recognized its

authority to depart, and denied the motion. In this regard, Graves’s counsel identified

one possible issue: whether the District Court erred in denying the motion.

“It is well-established in this Court that we lack jurisdiction to review the merits of

a district court’s discretionary decision to refuse a downward departure under the

Sentencing Guidelines once we determine that the district court properly understood its

authority to grant a departure.” United States v. Minutoli, 374 F.3d 236, 239-40 (3d Cir.

2004) (collecting cases). Because the District Court recognized its authority to depart

when it declined to exercise that authority, we lack jurisdiction to review its decision. As

a result, Graves’s counsel is correct that there is no issue of arguable merit for us to

consider concerning the departure ruling.

Finally, the District Court gave “rational and meaningful” consideration to the

§ 3553(a) factors, Tomko, 562 F.3d at 568 (quoting United States v. Grier, 475 F.3d 556,

571 (3d Cir. 2007) (en banc)), by addressing the serious nature of the offense as well as

nothing in the record supports this argument. Indeed, the docket concerning this conviction, for which we can take judicial notice, Orabi v. Att’y Gen., 738 F.3d 535, 537 n.1 (3d Cir. 2014) (“We may take judicial notice of the contents of another Court’s docket.”), reflects that he was sentenced to a minimum of eight months and a maximum of twenty-three months, and there is nothing indicating that the sentence was suspended. Additionally, Graves never objected to this information in his presentence report, so the District Court was entitled to accept it as a “finding of fact.” Fed. R. Crim. P. 32(i)(3)(A). As a result, we cannot say the District Court erred in assigning three criminal history points for this conviction. See United States v. Holloway, 826 F.3d 1237, 1251 (10th Cir. 2016) (“A factual dispute concerning the applicability of a particular guideline, not brought to the attention of the district court, does not rise to the level of plain error.” (quoting United States v. Saucedo, 950 F.2d 1508, 1518 (10th Cir. 1991)). 8 Graves’s circumstances, including his extensive criminal history and his “limited

educational background” and employment. App. 26. The District Court also noted that

Graves “was quick to admit his offense conduct and disclose his prior convictions.” App.

26. It found that these factors, taken together, favored a Guidelines-range sentence.

Thus, the sentence was procedurally reasonable.

The sentence was also substantively reasonable. Given Graves’s offense conduct

and his criminal record, which “span[s] thirty-six years” and includes past bank

robberies, App. 26, we cannot say that “no reasonable sentencing court would have

imposed” the within-Guidelines sentence of seventy months’ imprisonment that he

received, Tomko, 562 F.3d at 568. Thus, any challenge to the substantive reasonableness

of Graves’s sentence would lack merit.

III

For the foregoing reasons, we will grant counsel’s motion to withdraw and affirm

Graves’s conviction and sentence.5

5 After this appeal was filed, Graves moved for compassionate release in the District Court. That motion and his pro se arguments in connection with this appeal on that subject do not impact our Anders analysis, and we express no view on their merit. 9