NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No. 23-1956 _______________
UNITED STATES OF AMERICA
v.
JOSEPH M. GREENE, Appellant _______________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2:15-cr-00124-001) Chief District Judge: Honorable Juan R. Sanchez _______________
Submitted Under Third Circuit L.A.R. 34.1(a) on February 2, 2023
Before: KRAUSE, PORTER, and CHUNG, Circuit Judges
(Filed: February 14, 2024)
_______________
OPINION* _______________
* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. KRAUSE, Circuit Judge.
Joseph Greene violated the conditions of his supervised release and was sentenced
to 24 months’ imprisonment, followed by two additional years of supervision. Having
appealed the validity of this sentence, Greene’s counsel has moved to withdraw under
Third Circuit Local Appellate Rule (L.A.R.) 109.2 and Anders v. California, 386 U.S.
738 (1967), asserting that there are no non-frivolous grounds for appeal. The
Government agrees, and Greene, for his part, declined to submit a pro se brief. Because
we agree there are no non-frivolous issues for appeal with regard to Greene’s sentence,
we will grant counsel’s motion to withdraw and affirm the District Court’s judgment.
I. DISCUSSION1
When defense counsel files an Anders motion, we first evaluate the adequacy of
counsel’s briefing and then conduct a full examination of the proceedings to determine
whether an appeal would be wholly frivolous. United States v. Langley, 52 F.4th 564,
568 (3d Cir. 2022). Counsel’s briefing is adequate if it satisfies L.A.R. 109.2(a), which
requires counsel to “(1) demonstrate[] to this Court that [he] has thoroughly examined the
record in search of appealable issues, and (2) explain[] why those issues are frivolous.”
Id. at 569. Counsel need not “raise every possible appealable issue to meet this
standard,” but she must “adequately attempt to uncover the best arguments” and explain
1 The District Court had jurisdiction under 18 U.S.C. §§ 3231 and 3583(e). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review the District Court’s sentence for reasonableness under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Woronowicz, 744 F.3d 848, 851 (3d Cir. 2014). 2 their faults. Id. at 569–70 (citations omitted). We next conduct our own review of the
record, and if we are satisfied there are no non-frivolous issues for appeal, we will grant
counsel’s motion to withdraw and affirm. Id. at 568. We discuss both steps below.
A. Defense Counsel’s Anders Brief
In the circumstances of this case, defense counsel’s filing, on the whole, is
sufficient to satisfy L.A.R. 109.2(a).
In the text of his Anders brief, counsel argues that there are no non-frivolous
issues for appeal because the District Court’s sentence was procedurally correct.
Specifically, counsel notes the District Court properly considered the sentencing factors
under 18 U.S.C. § 3553(a), explained its reasoning, and informed Greene of his appellate
rights and the conditions of his sentence. Counsel also notes that the sentence was
“properly imposed and calculated under the [U.S. Sentencing Guidelines].”2 Anders Br.
3.
In addition, counsel submitted a detailed “Anders Checklist” that includes his
analysis of approximately thirteen potential sentencing defects. This reflects that counsel
reviewed the entire record to ensure that the District Court satisfied all procedural
requirements. Finally, the Government conducted its own review confirming there are no
non-frivolous issues for appeal.
2 While counsel “need not raise every frivolous issue,” United States v. Langley, 52 F.4th 564, 566 (3d Cir. 2022), we note that counsel’s brief here is unusually short and cites little caselaw. Given the review reflected by the checklist and the fact that the record is straightforward, however, we find that counsel has satisfied L.A.R. 109.2(a). 3 B. Greene’s Sentence
Our independent review of the proceedings also demonstrates that Greene’s
sentence was procedurally and substantively reasonable. We must first “ensure that the
district court committed no significant procedural error” when reviewing a sentencing
challenge. Langley, 52 F.4th at 576 (quoting Gall v. United States, 552 U.S. 38, 51
(2007)). If there is no such error, we next determine whether the sentence was
substantively reasonable under the totality of the circumstances. Id.
Here, the District Court did not commit any procedural errors at sentencing. The
parties agreed prior to Greene’s hearing that the applicable Guidelines range was 18–24
months’ imprisonment, and, even in the absence of such agreement, that range was
correct.3 The Court discussed the factors outlined in 18 U.S.C. § 3553(a), analyzing
Greene’s criminal history and behavior, the serious nature of the violation at issue, the
need to avoid unwarranted sentencing disparities, and whether the sentence was
“sufficient and not greater than necessary” to curb Greene’s recidivism. App. 38-42; 18
U.S.C. § 3553(a). It also considered Greene’s motion for a downward departure,
permitted Greene to speak at length, and explained why it selected the given sentence.
3 Greene committed a Grade A violation of supervised release because he engaged in conduct constituting a state or local offense punishable by a term of imprisonment exceeding one year that involved possession of a firearm. See U.S. Sent’g Guidelines Manual § 7B1.1(a)(1) (U.S. Sent’g Comm’n 2023). Greene’s underlying convictions were Class B felonies under 18 U.S.C. § 1014. See 18 U.S.C. § 3559(a)(2). And at the time Greene was originally sentenced to supervision, the District Court determined he had a criminal history category of III. As such, the Guidelines range of 18–24 months was the appropriate range for revocation of release, see U.S. Sent’g Guidelines Manual § 7B1.4, and 18 U.S.C. § 3583(h) authorized an additional term of supervised release after he served his revocation sentence.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No. 23-1956 _______________
UNITED STATES OF AMERICA
v.
JOSEPH M. GREENE, Appellant _______________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2:15-cr-00124-001) Chief District Judge: Honorable Juan R. Sanchez _______________
Submitted Under Third Circuit L.A.R. 34.1(a) on February 2, 2023
Before: KRAUSE, PORTER, and CHUNG, Circuit Judges
(Filed: February 14, 2024)
_______________
OPINION* _______________
* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. KRAUSE, Circuit Judge.
Joseph Greene violated the conditions of his supervised release and was sentenced
to 24 months’ imprisonment, followed by two additional years of supervision. Having
appealed the validity of this sentence, Greene’s counsel has moved to withdraw under
Third Circuit Local Appellate Rule (L.A.R.) 109.2 and Anders v. California, 386 U.S.
738 (1967), asserting that there are no non-frivolous grounds for appeal. The
Government agrees, and Greene, for his part, declined to submit a pro se brief. Because
we agree there are no non-frivolous issues for appeal with regard to Greene’s sentence,
we will grant counsel’s motion to withdraw and affirm the District Court’s judgment.
I. DISCUSSION1
When defense counsel files an Anders motion, we first evaluate the adequacy of
counsel’s briefing and then conduct a full examination of the proceedings to determine
whether an appeal would be wholly frivolous. United States v. Langley, 52 F.4th 564,
568 (3d Cir. 2022). Counsel’s briefing is adequate if it satisfies L.A.R. 109.2(a), which
requires counsel to “(1) demonstrate[] to this Court that [he] has thoroughly examined the
record in search of appealable issues, and (2) explain[] why those issues are frivolous.”
Id. at 569. Counsel need not “raise every possible appealable issue to meet this
standard,” but she must “adequately attempt to uncover the best arguments” and explain
1 The District Court had jurisdiction under 18 U.S.C. §§ 3231 and 3583(e). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review the District Court’s sentence for reasonableness under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Woronowicz, 744 F.3d 848, 851 (3d Cir. 2014). 2 their faults. Id. at 569–70 (citations omitted). We next conduct our own review of the
record, and if we are satisfied there are no non-frivolous issues for appeal, we will grant
counsel’s motion to withdraw and affirm. Id. at 568. We discuss both steps below.
A. Defense Counsel’s Anders Brief
In the circumstances of this case, defense counsel’s filing, on the whole, is
sufficient to satisfy L.A.R. 109.2(a).
In the text of his Anders brief, counsel argues that there are no non-frivolous
issues for appeal because the District Court’s sentence was procedurally correct.
Specifically, counsel notes the District Court properly considered the sentencing factors
under 18 U.S.C. § 3553(a), explained its reasoning, and informed Greene of his appellate
rights and the conditions of his sentence. Counsel also notes that the sentence was
“properly imposed and calculated under the [U.S. Sentencing Guidelines].”2 Anders Br.
3.
In addition, counsel submitted a detailed “Anders Checklist” that includes his
analysis of approximately thirteen potential sentencing defects. This reflects that counsel
reviewed the entire record to ensure that the District Court satisfied all procedural
requirements. Finally, the Government conducted its own review confirming there are no
non-frivolous issues for appeal.
2 While counsel “need not raise every frivolous issue,” United States v. Langley, 52 F.4th 564, 566 (3d Cir. 2022), we note that counsel’s brief here is unusually short and cites little caselaw. Given the review reflected by the checklist and the fact that the record is straightforward, however, we find that counsel has satisfied L.A.R. 109.2(a). 3 B. Greene’s Sentence
Our independent review of the proceedings also demonstrates that Greene’s
sentence was procedurally and substantively reasonable. We must first “ensure that the
district court committed no significant procedural error” when reviewing a sentencing
challenge. Langley, 52 F.4th at 576 (quoting Gall v. United States, 552 U.S. 38, 51
(2007)). If there is no such error, we next determine whether the sentence was
substantively reasonable under the totality of the circumstances. Id.
Here, the District Court did not commit any procedural errors at sentencing. The
parties agreed prior to Greene’s hearing that the applicable Guidelines range was 18–24
months’ imprisonment, and, even in the absence of such agreement, that range was
correct.3 The Court discussed the factors outlined in 18 U.S.C. § 3553(a), analyzing
Greene’s criminal history and behavior, the serious nature of the violation at issue, the
need to avoid unwarranted sentencing disparities, and whether the sentence was
“sufficient and not greater than necessary” to curb Greene’s recidivism. App. 38-42; 18
U.S.C. § 3553(a). It also considered Greene’s motion for a downward departure,
permitted Greene to speak at length, and explained why it selected the given sentence.
3 Greene committed a Grade A violation of supervised release because he engaged in conduct constituting a state or local offense punishable by a term of imprisonment exceeding one year that involved possession of a firearm. See U.S. Sent’g Guidelines Manual § 7B1.1(a)(1) (U.S. Sent’g Comm’n 2023). Greene’s underlying convictions were Class B felonies under 18 U.S.C. § 1014. See 18 U.S.C. § 3559(a)(2). And at the time Greene was originally sentenced to supervision, the District Court determined he had a criminal history category of III. As such, the Guidelines range of 18–24 months was the appropriate range for revocation of release, see U.S. Sent’g Guidelines Manual § 7B1.4, and 18 U.S.C. § 3583(h) authorized an additional term of supervised release after he served his revocation sentence. 4 The Court even went so far as to ask the parties whether there were any “procedural
irregularities” that needed to be addressed and whether “there [was] an adequate
discussion based on the 3553(a) factors to justify the extent of the sentence.” App. 46.
None were identified by the parties.
Greene’s sentence of 24 additional months of imprisonment and two years of
supervised release was also substantively reasonable. A sentence is substantively
reasonable unless “no reasonable sentencing court would have imposed the same
sentence on that particular defendant for the reasons the district court provided.” United
States v. Shah, 43 F.4th 356, 367 (3d Cir. 2022) (quoting United States v. Tomko, 562
F.3d 558, 568 (3d Cir. 2009)). Greene’s sentence was imposed for his second violation
of the conditions of his supervised release, and it was a serious violation: Greene fired a
weapon in a public square, resulting in six separate charges. Notably, his conduct
violated multiple terms of supervised release that were running concurrently, for which
the District Court could have imposed multiple, consecutive revocation sentences, United
States v. Dees, 467 F.3d 847, 851–52 (3d Cir. 2006), but the District Court declined to do
so, and the sentence it did impose fell within the Guidelines range. See United States v.
Woronowicz, 744 F.3d 848, 852 (3d Cir. 2014) (explaining that sentences within the
correct Guidelines range are more likely to be reasonable than those outside the range).
In addition, the District Court was permitted to impose up to 30 months’ additional
supervised release, see 18 U.S.C. § 3583(b)(1), (h), but it opted to impose only 24
months. Accordingly, it was reasonable—if not lenient—for the District Court to
sentence Greene as it did.
5 II. CONCLUSION
For the foregoing reasons, we will grant defense counsel’s motion to withdraw and
affirm the District Court’s judgment.4
4 In accordance with L.A.R. 109.2(b) we state that the issues presented here lack legal merit, and so Greene’s counsel is not required to file a petition for writ of certiorari with the Supreme Court. 6