United States v. Gregory Westberry

703 F. App'x 100
CourtCourt of Appeals for the Third Circuit
DecidedAugust 9, 2017
Docket16-3106
StatusUnpublished

This text of 703 F. App'x 100 (United States v. Gregory Westberry) 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. Gregory Westberry, 703 F. App'x 100 (3d Cir. 2017).

Opinion

OPINION *

CHAGARES, Circuit Judge.

Gregory Westberry was sentenced to 12 months of imprisonment and two years of supervised release after pleading guilty to violating the terms of his supervised release from a prior conviction. On appeal, his counsel moved to withdraw pursuant to Third Circuit Local Appellate Rule 109.2 and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We will grant permission for counsel to withdraw and affirm the District Court’s judgment.

I.

While Westberry was on supervised release for a prior conviction, 1 the United States Probation Office filed a Petition for Warrant or Summons for Offender under Supervision, requesting that the District Court revoke Westberry’s supervised release based on three alleged violations. The first and third charged violations were based on Westberry’s arrests dated January 6 and March 8, 2016. The second was for Westberry’s use of narcotics, based on a drug test on February 17, 2016 that tested positive for heroin.

Westberry appeared before the District Court on June 27, 2016, Prior to the hearing, Westberry and the Government had discussed an agreement where Westberry would plead guilty to the second violation charge and the Government would recommend 12 months of imprisonment with no supervised release and dismiss the first and third violation charges. The Probation Office, however, took the position that Westberry’s sentence should include a term of supervised release. Westberry’s attorney advised the court that the defendant “understands it will then be up to your Honor to decide how to resolve that,” App. 28.

Westberry’s attorney then answered in the affirmative to a series of questions posed by the court regarding whether Westberry was apprised of certain issues. Those issues included the consequences of pleading guilty, the waiver of rights, the sentencing exposure, the advisory nature of the federal Sentencing Guidelines, and that, notwithstanding the Government’s recommendation, it was “entirely up to the Court as to the sentence that’s to be imposed.” App. 28-31. The court conducted a colloquy directly with Westberry, during which he confirmed that he understood the charges against him, the rights that he would give up by pleading guilty, and the sentencing exposure; that he was pleading guilty voluntarily; and that he was satisfied with his attorney. Westberry pled guilty to the second violation charge and allocuted as to the nature of the violation (using heroin while on supervised release while at Delaney Hall, a halfway house).

*102 With the consent of the parties, the District Court proceeded to sentencing. West-berry’s attorney explained to the court the basis for the 12-month sentence jointly recommended by the Government and the defense. He noted that although the original basis for the second violation charge was a sole “dirty” urine sample, the proposed sentence was at the top of the advisory Sentencing Guidelines of seven to 13 months. He explained:

We’ve agreed to it for a couple of reasons. Number one, we understand ... other charges that [will] have been dismissed as to Mr. Westberry. And number two, in the hope that the Court will consider the fact that in imposing what we consider to be a harsh sentence for a one dirty urine violation, the Court will dispense with the requirement of further supervised release, which is also part of the joint recommendation.

App. 43. The Government added that “although this is Mr. Westberry’s first violation^] it is important to note that he was only on supervised release for approximately eight weeks before his first arrest that forms the basis for violation number one.” App. 48. The Government also noted that Westberry’s prior sentence was the result of a “very significant” downward departure and that Westberry admitted to using heroin while residing at a halfway house “specifically for inmates who have substance abuse issues.” App. 49.

The District Court concluded that, after considering the facts of the case and the 18 U.S.C. § 3553(a) factors, a 12-month term of imprisonment and a two-year term of supervised release was appropriate. The court noted as relevant considerations Westberry’s extensive criminal history and drug use, the short period of time between the start of the previous term of supervised release and the alleged violation, and the fact that he used heroin at a halfway house. The court concluded:

I think that by not continuing Mr. West-berry on supervised release I don’t think it promotes respect for the law, number one. I think that someone who — he should have to prove himself that he can do this. That’s what supervision is all about. He should be deterred. And if he’s kept on supervised release, when he gets out he'll be deterred because he’ll know if he violates again he’ll be back in the same boat, he’ll be back facing jail time. And that will serve as a very valuable deterrent for him. The public will be protected by the sentence that I’m about to impose.

App. 54. While the sentence was being announced, Westberry attempted to request that the court sentence him to 24 months of imprisonment instead of 12 months, and no supervised release. The court declined.

Westberry timely appealed. His attorney requests to withdraw because there is no viable basis for appeal.

II. 2

Under Anders v. California, court-appointed counsel may — after finding any appeal “to be wholly frivolous” after careful examination of the record — file a brief “advising] the Court and requesting] permission to withdraw” and identifying “anything in the record that might arguably support the appeal.” 386 U.S. at 744, 87 S.Ct. 1396. In evaluating a motion to withdraw, the Court’s inquiry is twofold: “(1) whether counsel adequately fulfilled the [Court’s] rule’s requirements” under Third Circuit Local Appellate Rule 109.2(a); and “(2) whether an independent review of the *103 record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).

The withdrawing counsel’s brief must “satisfy the court that counsel has thoroughly examined the record in search of appealable issues” and “explain why the issues are frivolous.” Id. An appeal is frivolous if “the appeal lacks any basis in law or fact.” McCoy v. Court of Appeals of Wis., 486 U.S. 429, 438 n.10, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988). If the Anders brief “appears to be adequate on its face, the proper course is for the appellate court to be guided in reviewing the record by the Anders brief itself. A complete scouring of the record is unnecessary.” Youla, 241 F.3d at 300-01.

We conclude that counsel has fulfilled the requirements of Anders by making a thorough examination of the record. See id at 299.

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Bluebook (online)
703 F. App'x 100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gregory-westberry-ca3-2017.