United States v. McLaughlin

82 F. App'x 741
CourtCourt of Appeals for the Third Circuit
DecidedNovember 7, 2003
DocketNo. 02-3696
StatusPublished
Cited by2 cases

This text of 82 F. App'x 741 (United States v. McLaughlin) 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. McLaughlin, 82 F. App'x 741 (3d Cir. 2003).

Opinion

OPINION

McKEE, Circuit Judge.

George McLaughlin appeals from the district court’s judgment of sentence and conviction. For the reasons that follow, we will affirm.

I.

Inasmuch as we write only for the parties, it is not necessary to recite at length the facts of this case. It is sufficient for our purposes to note that on August 18, 1999, a superseding indictment was returned by a federal grand jury charging McLaughlin with conspiracy to commit armed bank robbery in violation of 18 U.S.C. § 371 (Count Four); aiding and abetting an attempted bank robbery in violation of 18 U.S.C. §§ 2113(d) and 2 (Count Five); aiding and abetting the carrying and use of a firearm during a crime of violence in violation of 18 U.S.C. §§ 924(c)(1) and 2 (Count Six); conspiracy to commit armed bank robbery in violation of 18 U.S.C. § 371 (Count Seven); armed bank robbery in violation of 18 U.S.C. § 2331(d) (Count Eight); and carrying and use of a firearm during a crime of violence in violation fo 18 U.S.C. § 924(c)(1) (Count Nine).

On April 6, 1999, McLaughlin pleaded guilty and agreed to cooperate with the government pursuant to a written plea agreement. During the guilty plea colloquy, the government set forth the factual basis for McLaughlin’s guilty plea to Counts Four through Nine of the superseding indictment. McLaughlin agreed with the government’s statement of facts.

The presentence report determined that McLaughlin’s offense level was 28 and that his criminal history category was III, producing a guideline range of imprisonment of 97 to 121 months. Prior to sentencing, the government filed a motion for downward departure for substantial assistance pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(3). At sentencing, the government described the substantial assistance provided by McLaughlin. In addition, the parties and the district court agreed that the offense level should be reduced to 27, creating a sentencing range of 87 to 108 months. McLaughlin offered no objections to the sentencing calculations. When the guideline determination was coupled with the mandatory sentences for the § 924(c) offenses, McLaughlin faced a sentencing range of 387 to 408 months.

The district court granted the government’s § 5K1.1 motion and on September 17, 2002, McLaughlin was sentenced to concurrent 60 month sentences of imprisonment on Counts Four, Five, Seven and Eight, 60 months imprisonment on Count Six to run consecutive to any other sentence, 96 months imprisonment on Count Nine to run consecutive to any other sentence (for a total of 216 months, or 18 years, imprisonment), five years supervised release, restitution of $1,500, and a $600 special assessment. Thus, the sentencing court granted a substantial departure.

[743]*743The judgment and commitment order was entered on September 20, 2002. On September 27, 2002, McLaughlin filed a timely notice of appeal.

II.

Appointed counsel for McLaughlin has filed an brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that he is unable to identify any non-frivolous issue for review. An appointed appellate counsel who “finds [a] case to be wholly frivolous, after a conscientious examination of’ the case, must so advise the court of appeals and request permission to withdraw. Anders, at 744, 87 S.Ct. 1396 (1967). Counsel’s request must be accompanied by a “brief referring to anything in the record that might arguably support the appeal.” Id. That is to say, the brief must identify any “issue arguably supporting the appeal even though the appeal was wholly frivolous,” Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000), “explain why the issues are frivolous,” United States v. Marvin, 211 F.3d 778, 781 (3d Cir.2000), and show that counsel “thoroughly scoured the record in search of appealable issues.” Id. at 780; see also United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001).

Defense counsel’s Anders brief refers us to the portions of the record that arguably present non-frivolous issues. He has been able to identify the following issues: (1) whether McLaughlin’s guilty pleas was entered knowingly and voluntarily; (2) whether the sentence imposed was lawful; (3) whether the evidence supported two 18 U.S.C. § 924(e) violations; and (4) whether McLaughlin was entitled to be sentenced to a maximum sentence of five years. However, McLaughlin’s counsel has concluded that any claim of error would be frivolous. We agree that any such claims would lack any basis in law or fact for the reasons explained in the Anders brief.

We note, however, that counsel’s Anders brief was furnished to McLaughlin, who was given time to raise any non-frivolous arguments in a pro se brief. As a result, McLaughlin has raised the following issues in his pro se brief: (1) whether there is sufficient evidence to support the conviction of aiding and abetting an attempted bank robbery in violation of 18 U.S.C. § 2113(d); (2) whether there is sufficient evidence to support the conviction of aiding and abetting the carrying of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c); (3) whether McLaughlin was entitled to be sentenced to a maximum of five years imprisonment; and (4) whether the sentence was unlawfully enhanced for a prior conviction for which the sentence was less than one year. Each argument is discussed separately below.

(1). Sufficiency of the evidence to support conviction of aiding and abetting an attempted bank robbery in violation of 18 U.S.C. § 2113(d).

McLaughlin claims there is insufficient evidence supporting Count Five, charging aiding and abetting an attempted bank robbery in violation of 18 U.S.C. §§ 2113(d) and 2.

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Bluebook (online)
82 F. App'x 741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mclaughlin-ca3-2003.