United States v. Kelly

349 F. App'x 782
CourtCourt of Appeals for the Third Circuit
DecidedOctober 21, 2009
DocketNo. 08-2242
StatusPublished

This text of 349 F. App'x 782 (United States v. Kelly) 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. Kelly, 349 F. App'x 782 (3d Cir. 2009).

Opinion

OPINION

GARTH, Circuit Judge:

David B. Chontos, Esq., counsel for defendant Ray Kelly in this case, submitted a motion to withdraw as counsel and accompanying brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Local Appellate Rule 109.2(a) because there are no non-frivolous issues on appeal. Upon careful review of the brief and the record, we will grant the motion and affirm the District Court’s judgment and sentence.

[784]*784I.

In 2005, Kelly began serving a 70-month federal prison sentence imposed following a conviction on narcotics charges. While incarcerated, Kelly continued to arrange the distribution of large quantities of cocaine. This was accomplished largely through a series of telephone calls from prison to his wife and two partners in the narcotics business. Law enforcement officers monitored those calls, and connected them with the June 15, 2006 seizure of $250,000 in cash from a mail facility in North Huntingdon, Pennsylvania. Police later determined that the money had been sent from one of Kelly’s co-conspirators to the other as payment for approximately fifteen kilograms of cocaine. In subsequent telephone calls, Kelly discussed the seizure of the money and the continuing viability of the enterprise. App. 38^2.

Kelly was indicted in June 2007, and pled guilty to conspiring to distribute, and to possess with intent to distribute, at least five kilograms of cocaine. See 21 U.S.C. § 841(a)(1), 846. The District Court sentenced Kelly to 240 months of imprisonment, the minimum term of imprisonment allowed by statute in light of Kelly’s prior felony drug conviction.1 See 21 U.S.C. § 841(b)(1)(A). Kelly appealed, and his counsel filed a motion to withdraw and accompanying Anders brief. Kelly filed an informal pro se reply brief.2

II.

Our task in ruling on a motion to withdraw pursuant to Anders is twofold.3 We ask (1) whether counsel adequately fulfilled the requirements of 3d Cir. L.A.R. 109.2; and (2) whether an independent review of the record reveals any non-frivolous issues meriting consideration. United States v. Coleman, 575 F.3d 316, 319 (3d Cir.2009). To satisfy Local Rule 109.2, counsel must (1) “satisfy the court that [he] has thoroughly examined the record in search of appealable issues” and (2) “explain why the issues are frivolous. Counsel need not raise and reject every possible claim. However, at a minimum, he or she must meet the ‘conscientious examination’ standard set forth in Anders.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). If the Anders brief appears adequate, the court need not itself engage in a “complete scouring of the record,” but may be “guided in reviewing the record by the Anders brief itself.” Id. at 301 (quoting United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996)).

III.

Counsel’s thorough brief meets the requirements of Anders, Coleman, and Local [785]*785Rule 109.2. The brief correctly observes that because Kelly pled guilty, he is limited to arguing three issues on appeal: (1) the jurisdiction of the court below; (2) the constitutional and statutory validity of the plea; and (3) the legality of his sentence. See United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). Kelly pled guilty to a violation of the federal narcotics conspiracy statute, 21 U.S.C. § 846. The District Court plainly had jurisdiction over that offense under 18 U.S.C. § 3231. Thus there are no non-frivolous jurisdictional issues to be argued.

Counsel’s brief notes several deficiencies in the colloquy conducted by the District Court before Kelly changed his plea to guilty. The requirements of the colloquy are set forth in Fed.R.Crim.P. 11(b), and are intended to ensure that the defendant’s decision to plead guilty is made voluntarily, knowingly, and intelligently. See United States v. Tidwell, 521 F.3d 236, 251-52 (3d Cir.2008). Although the District Court’s colloquy covered many of the items provided in the Rule, it failed to address several required topics. In particular, the District Court failed to explicitly inform Kelly that he had a right to maintain his plea of not guilty; to inform Kelly that he had a right to be protected against compelled self-incrimination and to present evidence on his own behalf; and to discuss the impact of Kelly’s guilty plea on the forfeiture allegations contained in the indictment.

Because Kelly did not object to the adequacy of the colloquy in the District Court, we review only for plain error. United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Corso, 549 F.3d 921, 926-27 (3d Cir.2008). “Plain error requires that there must be (1) error, (2) that is plain or obvious, and (3) that affects a defendant’s substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Goodson, 544 F.3d 529, 539 (3d Cir.2008) (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)) (alterations and internal citations omitted). The defendant bears the burden of persuading us that any error affected his substantial rights. United States v. Adams, 252 F.3d 276, 281 (3d Cir.2001). In the context of allegedly plain error under Rule 11, Kelly is required to “show a reasonable probability that, but for the error, he would not have entered the [guilty] plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).

The District Court did not explicitly inform Kelly that he had a right to persist in his guilty plea, as required by Fed.R.Crim.P. 11(b)(1)(B).

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Related

United States v. Jaime Seidel Viveros
298 F. App'x 817 (Eleventh Circuit, 2008)
Anders v. California
386 U.S. 738 (Supreme Court, 1967)
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488 U.S. 563 (Supreme Court, 1989)
Johnson v. United States
520 U.S. 461 (Supreme Court, 1997)
United States v. Vonn
535 U.S. 55 (Supreme Court, 2002)
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United States v. Larry Edward Stead
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755 F.2d 313 (Third Circuit, 1985)
United States v. James R. Wagner
103 F.3d 551 (Seventh Circuit, 1996)
United States v. Michael Anthony Adams
252 F.3d 276 (Third Circuit, 2001)
United States v. Williamson
219 F. App'x 332 (Fourth Circuit, 2007)
United States v. Coleman
575 F.3d 316 (Third Circuit, 2009)
United States v. Morena
547 F.3d 191 (Third Circuit, 2008)
United States v. Tidwell
521 F.3d 236 (Third Circuit, 2008)
United States v. Griffin
521 F.3d 727 (Seventh Circuit, 2008)
United States v. Goodson
544 F.3d 529 (Third Circuit, 2008)
United States v. Corso
549 F.3d 921 (Third Circuit, 2008)
United States v. Williams
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Bluebook (online)
349 F. App'x 782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kelly-ca3-2009.