NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 19-3251 ______
UNITED STATES OF AMERICA
v.
KEVIN CHARLES BROWN, Appellant
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3-18-cr-00064-001) District Judge: Honorable Malachy E. Mannion ____________
Submitted Pursuant to Third Circuit LAR 34.1(a) April 28, 2021 ____________
Before: SMITH, Chief Judge, PHIPPS and ROTH, Circuit Judges.
(Filed: June 3, 2021) ___________
OPINION * ___________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PHIPPS, Circuit Judge.
Kevin Charles Brown appeals his conviction and 240-month sentence for
conspiracy to distribute and possess with intent to distribute heroin, cocaine base (crack),
and fentanyl. In District Court, Brown was represented by court-appointed counsel, and
on appeal that counsel has moved to withdraw from representing him. As explained in
counsel’s Anders brief, counsel believes that Brown cannot present any non-frivolous
issue on appeal. See Anders v. California, 386 U.S. 738 (1967); 3d Cir. L.A.R. 109.2(a).
In response, the Government has filed a brief in support of counsel’s Anders motion, and
Brown has filed a pro se brief in support of his appeal.
Upon consideration of the Anders brief, the Government’s response, and the pro se
brief, as well as our independent review, we will grant counsel’s motion to withdraw, and
we will affirm the judgment of the District Court.
I.
In April 2016, federal and state agents began investigating Brown on suspicion of
drug trafficking. Over the next few months, Brown and his co-conspirators made several
drug sales to confidential informants. A federal grand jury indicted Brown on nine
criminal counts, eight related to drugs plus one related to firearms.
Following that indictment, at the initial appearance, the District Court appointed
counsel for Brown. About six months later, at Brown’s request, his initial counsel filed a
motion to withdraw, which the District Court granted.
2 The District Court then appointed Brown’s current attorney. A few months later,
at Brown’s request, counsel moved to withdraw from representing Brown. The District
Court held a hearing on that motion, and, after finding that counsel was competent,
presented Brown with the option of either proceeding with his current court-appointed
counsel or representing himself. After Brown refused to answer, the District Court
scheduled a trial date, instructed counsel that he would continue to represent Brown, and
denied the motion to withdraw.
Court-appointed counsel then represented Brown at his guilty plea and at
sentencing. Brown pleaded guilty to one count of conspiracy to distribute and possess
with intent to distribute more than one kilogram of heroin, more than 280 grams of
cocaine base, and fentanyl, in violation of 21 U.S.C. § 846. In anticipation of sentencing,
the Probation Office prepared a Presentence Investigation Report (PSR) with a
Guidelines sentencing range of 360 months’ to life imprisonment. The PSR reached that
result based on a total offense level of 37 (a sum that did not include a reduction for
acceptance of responsibility) and a criminal history category of VI. The PSR did not
identify any factors warranting either a departure or a variance under 18 U.S.C.
§ 3553(a).
At the sentencing hearing, Brown’s counsel achieved a markedly better outcome
for Brown. Counsel first objected to the Guidelines calculation, arguing that Brown was
entitled to a reduction for acceptance of responsibility. The Government did not oppose
that objection, and the District Court reduced Brown’s total offense level by three to 34,
3 yielding a Guidelines range of 262 to 327 months. Counsel also requested a variance
based on Brown’s difficult childhood and family life, and the District Court varied
downward from the Guidelines range by imposing a sentence of 240 months’
incarceration.
After that final judgment, at Brown’s request, counsel filed a notice of appeal,
invoking the appellate jurisdiction of this Court. See 18 U.S.C. § 3742(a); see also
28 U.S.C. § 1291. Counsel then moved for leave to withdraw under Anders because after
careful review of the case, he found no non-frivolous appellate issues. In its response
brief, the Government agreed that there are no non-frivolous appellate issues.
Meanwhile, Brown filed his own pro se brief, raising various issues on appeal.
II.
Under Anders, court-appointed counsel may not withdraw from representing a
defendant on appeal without approval from the court. See, e.g., Smith v. Robbins,
528 U.S. 259, 264 (2000); McCoy v. Ct. of Appeals, 486 U.S. 429, 430 (1988); see also
3d Cir. L.A.R. 109.2(a). To obtain such a court order, counsel must first “satisfy the
court that he or she has thoroughly scoured the record in search of appealable issues,”
United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000), and second persuade the court
that any appellate issue would be “so frivolous that it may be decided without an
adversary presentation,” Penson v. Ohio, 488 U.S. 75, 82 (1988). If after reviewing
counsel’s motion, the Government’s response, and any pro se filings, along with its own
independent review of the record, the court determines that those two criteria are met,
4 then the court “will grant counsel’s Anders motion, and dispose of the appeal without
appointing new counsel.” 3d Cir. L.A.R. 109.2(a); see also United States v.
Youla, 241 F.3d 296, 300 (3d Cir. 2001).
III.
In his Anders brief, Brown’s counsel identifies four potential appellate issues.
They relate to (i) the court’s jurisdiction; (ii) the denial of Brown’s request for a third
court-appointed attorney; (iii) the validity or voluntariness of Brown’s guilty plea; and
(iv) the constitutionality of Brown’s below-Guidelines sentence. In its response, the
Government concurs with counsel’s assessment of the scope of potential appellate issues.
In his pro se brief, Brown raises six issues for appeal. Four of those directly
challenge his conviction and sentence. He argues that the proof of drug quantities was
inadequate, that the calculation of the drug quantities was improper, that he was
wrongfully charged for separate conspiracies, and that false statements were included as
evidence. His final two contentions attack the effectiveness of counsel. In those, he
contends that counsel failed to investigate the detective and to identify and investigate
key witnesses.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 19-3251 ______
UNITED STATES OF AMERICA
v.
KEVIN CHARLES BROWN, Appellant
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3-18-cr-00064-001) District Judge: Honorable Malachy E. Mannion ____________
Submitted Pursuant to Third Circuit LAR 34.1(a) April 28, 2021 ____________
Before: SMITH, Chief Judge, PHIPPS and ROTH, Circuit Judges.
(Filed: June 3, 2021) ___________
OPINION * ___________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PHIPPS, Circuit Judge.
Kevin Charles Brown appeals his conviction and 240-month sentence for
conspiracy to distribute and possess with intent to distribute heroin, cocaine base (crack),
and fentanyl. In District Court, Brown was represented by court-appointed counsel, and
on appeal that counsel has moved to withdraw from representing him. As explained in
counsel’s Anders brief, counsel believes that Brown cannot present any non-frivolous
issue on appeal. See Anders v. California, 386 U.S. 738 (1967); 3d Cir. L.A.R. 109.2(a).
In response, the Government has filed a brief in support of counsel’s Anders motion, and
Brown has filed a pro se brief in support of his appeal.
Upon consideration of the Anders brief, the Government’s response, and the pro se
brief, as well as our independent review, we will grant counsel’s motion to withdraw, and
we will affirm the judgment of the District Court.
I.
In April 2016, federal and state agents began investigating Brown on suspicion of
drug trafficking. Over the next few months, Brown and his co-conspirators made several
drug sales to confidential informants. A federal grand jury indicted Brown on nine
criminal counts, eight related to drugs plus one related to firearms.
Following that indictment, at the initial appearance, the District Court appointed
counsel for Brown. About six months later, at Brown’s request, his initial counsel filed a
motion to withdraw, which the District Court granted.
2 The District Court then appointed Brown’s current attorney. A few months later,
at Brown’s request, counsel moved to withdraw from representing Brown. The District
Court held a hearing on that motion, and, after finding that counsel was competent,
presented Brown with the option of either proceeding with his current court-appointed
counsel or representing himself. After Brown refused to answer, the District Court
scheduled a trial date, instructed counsel that he would continue to represent Brown, and
denied the motion to withdraw.
Court-appointed counsel then represented Brown at his guilty plea and at
sentencing. Brown pleaded guilty to one count of conspiracy to distribute and possess
with intent to distribute more than one kilogram of heroin, more than 280 grams of
cocaine base, and fentanyl, in violation of 21 U.S.C. § 846. In anticipation of sentencing,
the Probation Office prepared a Presentence Investigation Report (PSR) with a
Guidelines sentencing range of 360 months’ to life imprisonment. The PSR reached that
result based on a total offense level of 37 (a sum that did not include a reduction for
acceptance of responsibility) and a criminal history category of VI. The PSR did not
identify any factors warranting either a departure or a variance under 18 U.S.C.
§ 3553(a).
At the sentencing hearing, Brown’s counsel achieved a markedly better outcome
for Brown. Counsel first objected to the Guidelines calculation, arguing that Brown was
entitled to a reduction for acceptance of responsibility. The Government did not oppose
that objection, and the District Court reduced Brown’s total offense level by three to 34,
3 yielding a Guidelines range of 262 to 327 months. Counsel also requested a variance
based on Brown’s difficult childhood and family life, and the District Court varied
downward from the Guidelines range by imposing a sentence of 240 months’
incarceration.
After that final judgment, at Brown’s request, counsel filed a notice of appeal,
invoking the appellate jurisdiction of this Court. See 18 U.S.C. § 3742(a); see also
28 U.S.C. § 1291. Counsel then moved for leave to withdraw under Anders because after
careful review of the case, he found no non-frivolous appellate issues. In its response
brief, the Government agreed that there are no non-frivolous appellate issues.
Meanwhile, Brown filed his own pro se brief, raising various issues on appeal.
II.
Under Anders, court-appointed counsel may not withdraw from representing a
defendant on appeal without approval from the court. See, e.g., Smith v. Robbins,
528 U.S. 259, 264 (2000); McCoy v. Ct. of Appeals, 486 U.S. 429, 430 (1988); see also
3d Cir. L.A.R. 109.2(a). To obtain such a court order, counsel must first “satisfy the
court that he or she has thoroughly scoured the record in search of appealable issues,”
United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000), and second persuade the court
that any appellate issue would be “so frivolous that it may be decided without an
adversary presentation,” Penson v. Ohio, 488 U.S. 75, 82 (1988). If after reviewing
counsel’s motion, the Government’s response, and any pro se filings, along with its own
independent review of the record, the court determines that those two criteria are met,
4 then the court “will grant counsel’s Anders motion, and dispose of the appeal without
appointing new counsel.” 3d Cir. L.A.R. 109.2(a); see also United States v.
Youla, 241 F.3d 296, 300 (3d Cir. 2001).
III.
In his Anders brief, Brown’s counsel identifies four potential appellate issues.
They relate to (i) the court’s jurisdiction; (ii) the denial of Brown’s request for a third
court-appointed attorney; (iii) the validity or voluntariness of Brown’s guilty plea; and
(iv) the constitutionality of Brown’s below-Guidelines sentence. In its response, the
Government concurs with counsel’s assessment of the scope of potential appellate issues.
In his pro se brief, Brown raises six issues for appeal. Four of those directly
challenge his conviction and sentence. He argues that the proof of drug quantities was
inadequate, that the calculation of the drug quantities was improper, that he was
wrongfully charged for separate conspiracies, and that false statements were included as
evidence. His final two contentions attack the effectiveness of counsel. In those, he
contends that counsel failed to investigate the detective and to identify and investigate
key witnesses.
On independent review, counsel’s Anders brief demonstrates a thorough
examination of the record, and it guides this Court’s assessment of the record. See Youla,
241 F.3d at 301. Thus, counsel demonstrated the requisite diligence, and for the reasons
below, this appeal contains no non-frivolous issues.
5 First, there is no jurisdictional defect. Because Brown was charged with several
federal criminal offenses that occurred within the Middle District of Pennsylvania, the
District Court had jurisdiction under 18 U.S.C. § 3231.
Second, the District Court did not err in its response to Brown’s second request for
new counsel. Brown had no right to court-appointed counsel of his choosing. See United
States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006). And here, the District Court found
Brown’s second counsel to be competent. Nor did Brown elect to represent himself when
given the opportunity to do so. See Faretta v. California, 422 U.S. 806, 821 (1975).
Third, there is no infirmity with Brown’s guilty plea. The District Court properly
ensured that Brown’s plea was knowing, intelligent, and voluntary. See Bradshaw v.
Stumpf, 545 U.S. 175, 183 (2005); Boykin v. Alabama, 395 U.S. 238, 240–42 (1969); see
also Fed. R. Crim. P. 11(b).
Fourth, Brown has no non-frivolous basis for challenging his below-Guidelines
sentence. The District Court followed the three-step protocol outlined in United States v.
Gunter, 462 F.3d 237, 247 (3d Cir. 2006), and imposed a reasonable sentence below the
calculated Guidelines range after accounting for the factors listed in 18 U.S.C. § 3553(a),
see United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006), abrogated on other
grounds by Rita v. United States, 551 U.S. 338 (2007).
Finally, the challenges in Brown’s pro se brief do not rise above the threshold of
frivolousness. By entering a knowing, intelligent, and voluntary guilty plea without
reserving the right to challenge any specific issue, see Fed. R. Crim. P. 11(a)(2), Brown
6 waived all non-jurisdictional issues. See Washington v. Sobina, 475 F.3d 162, 165 (3d
Cir. 2007). Because four of his six claims are non-jurisdictional, they have been waived.
The remaining two arguments attack the effectiveness of counsel – despite Brown’s
signed plea agreement in which he expressed satisfaction with the assistance of his
counsel. But as a general matter, direct appeal does not allow meaningful review of
collateral attacks. See United States v. Washington, 869 F.3d 193, 203 (3d Cir. 2017)
(explaining that other than in an “uncommon case,” evaluation of counsel’s performance
from the court record is not “both feasible and efficient”); United States v. McLaughlin,
386 F.3d 547, 555 (3d Cir. 2004) (“It is well settled in this court that Sixth Amendment
ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 668
(1984) are generally not entertained on a direct appeal.” (citations omitted)).
***
For these reasons, we will grant counsel’s Anders motion to withdraw and affirm
the judgment of the District Court.