United States v. Schaeffer

78 F. App'x 801
CourtCourt of Appeals for the Third Circuit
DecidedOctober 23, 2003
Docket02-1291
StatusUnpublished

This text of 78 F. App'x 801 (United States v. Schaeffer) 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. Schaeffer, 78 F. App'x 801 (3d Cir. 2003).

Opinion

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Keith Schaeffer pled guilty to three counts of a 32-count indictment returned against him and his eight co-defendants. The counts to which Schaeffer pled guilty were (1) conspiracy to operate a “chop shop” and to remove and alter Vehicle Identification Numbers (VINs) and to possess vehicles with altered VINs with intent to sell, in violation of 18 U.S.C. § 371 (Count 1), (2) illegally altering and removal of a VIN from a motorcycle and aiding and abetting, in violation of 18 U.S.C. §§ 511 and 2 (Count 2), and (3) possession of motorcycles with altered VINs with the intent to sell and aiding and abetting, in violation of 18 U.S.C. § 2321 and 2 (Count 18).

Schaeffer entered into a written plea agreement that gave the Government the discretion to make whatever sentencing recommendation it deemed appropriate and gave it the right to comment on the evidence and circumstances of the case and to bring to the court’s attention all facts relevant to sentencing. Schaeffer and the Government entered into a number of stipulations under the Sentencing Guideline Manual, effective November 1, 1998, which included a stipulation that Schaeffer's base offense level was 8; the retail value of the motor vehicles and parts exceeded $70,000 but was less than $120,000, thereby increasing Schaeffer’s adjusted offense level by six; the loss was caused in furtherance of the criminal activity jointly undertaken by Schaeffer and his co-conspirators and was within the scope of the defendant’s agreement, and the amount of the loss was reasonably foreseeable to Schaeffer in connection with the conspiracy; and his guideline range should be calculated based on this amount pursuant to Guideline section 1B1.3.

The parties also stipulated that Schaeffer was in the business of receiving and selling stolen property, which increases the adjusted offense level by two. However, he was given credit for acceptance of responsibility which entitled him to a two-level reduction. Because he had assisted authorities in the investigation and prosecution of his own misconduct, Schaeffer was given an additional one-level downward adjustment. The Government had not undertaken to file a § 5K1.1 motion, and did not do so. The District Court accepted the presentence investigation report (PSI). Schaeffer was sentenced to 22 months’ imprisonment, which was within the applicable guideline range of 18 to 24 months.

Counsel for Schaeffer has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Under Anders, if counsel is convinced after conscientious investigation that the appeal is frivolous, counsel may properly ask to withdraw while filing a brief referring to anything in the record that might arguably support the appeal. See id. at 741-42, 744, 87 S.Ct. 1396. To satisfy the Anders requirements, appellant’s counsel must “satisfy the court that he or she has thoroughly scoured the record in search of appealable issues,” and then “explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000).

In this case, counsel has concluded that there are not properly presented and preserved issues on which he could reasonably base an argument to secure meaningful appellate review and/or relief for Schaeffer. He notes that Schaeffer essentially asserts three claims for appeal: that he should receive a reduction for being a minor participant in the conspiracy; that he should be entitled to a § 5K1.1 motion for *803 reduction of sentence because he cooperated with the Pennsylvania State Police; and that the amount of the restitution for which he should be held responsible is one-fourth of the amount imposed by the court.

As noted in the Anders brief, Schaeffer’s counsel did not file an objection to the PSI nor did he raise any issue regarding the applicable sentencing guidelines. Counsel explains why the issues that Schaeffer asserts would not be persuasive. Counsel has therefore fulfilled his obligation under Anders to assert the relevant issues and explain his reasons why they are not persuasive.

Schaeffer, as authorized under Anders, has filed a pro se brief to be considered in addition to that filed by counsel. After Schaeffer received the Government brief, Schaeffer filed a responsive brief in which he withdrew several of the arguments raised in his initial pro se brief but emphasizes four arguments. Counsel’s brief and Schaeffer’s two briefs, taken together, are sufficient to guide our review of the record.

In Schaeffer’s responsive brief, he contends first that the amount of restitution that the court ordered him to pay should be divided equally between him and his co-defendants who participated in the theft of the five motorcycles for which he was indicted. We find this argument unpersuasive.

The District Court imposed a direction that Schaeffer pay restitution in the amount of $40,695 because Schaeffer was involved in the theft of five separate motorcycles. Although he pled guilty only to charges for two incidents of motorcycle theft, we have held that a district court may hold each co-conspirator jointly and severally liable for the full amount of the loss in order to permit victims to recover losses for all or some of the defendants. See United States v. Diaz, 245 F.3d 294, 312 (3d Cir.2001); United States v. Hunter, 52 F.3d 489, 494-95 (3d Cir.1995). The value of the five motorcycles in the list presented to the District Court totaled $40,695. Although the District Court did not expressly state that its restitution order as to Schaeffer was based on its imposition of joint and several liability, it is evident that it was because the PSI, which the Court adopted, as well as Schaeffer’s guilty plea agreement stated that the fraud loss was caused in furtherance of jointly undertaken criminal activity by Schaeffer and his co-conspirators and was reasonably foreseeable. Nonetheless, as we are remanding, we will direct the District Court to make explicit its intention with respect to joint and several liability.

Next, Schaeffer argues in his pro se brief that the District Court committed plain error by fading to find that his prior offenses of August 1997 were related. Essentially, this argument is that the PSI incorrectly assessed three criminal history points for his prior offenses described in ¶¶ 37, 38 and 39 of the PSI. Schaeffer claims that these offenses stem from the same arrest and therefore they should have been assessed only one point, not three.

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
United States v. Reginald Hallman
23 F.3d 821 (Third Circuit, 1994)
United States v. Vanessa Hunter
52 F.3d 489 (Third Circuit, 1995)
United States v. Raymond Elmore
108 F.3d 23 (Third Circuit, 1997)
United States v. Donald Wayne Marvin
211 F.3d 778 (Third Circuit, 2000)

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Bluebook (online)
78 F. App'x 801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-schaeffer-ca3-2003.