United States v. Sean Fryer

• Court: Court of Appeals for the Third Circuit
• Decided: December 20, 2022
• Docket: 21-2411
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 21-2411 _____________

UNITED STATES OF AMERICA

v.

SEAN MICHAEL FRYER Appellant _______________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3:18-cr-00414-001) District Judge: Honorable Robert D. Mariani _______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) December 7, 2022 _____________

Before: SHWARTZ, MATEY, and FUENTES, Circuit Judges.

(Filed: December 20, 2022) _____________________

OPINION * _____________________

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. MATEY, Circuit Judge.

Facing charges related to sexual crimes against children, Sean Fryer pleaded guilty

to online enticement in an agreement that waived his right to appeal his conviction and

sentence. Fryer appealed anyway and his counsel now moves to withdraw under Anders v.

California, 386 U.S. 738 (1967) and Third Circuit L.A.R. 109.2(a), arguing the appeal is

without merit. We agree and will grant the motion to withdraw and dismiss Fryer’s appeal.

I.

In computer chat sessions, using the moniker “Bad Boy,” Fryer shared images and

videos depicting sexually abused children and wrote messages describing his experience

molesting kids. Unbeknownst to Fryer, he was chatting with law enforcement. From the

fruits of subpoenas sent to the relevant parties, the FBI traced the “Bad Boy” username to

Fryer’s email, IP logs, and finally his home address. Fryer was arrested and pleaded guilty

to online enticement in violation of 18 U.S.C. § 2422(b) in exchange for a three-level

reduction in his offense level.

After consulting his attorney, Fryer signed a written plea agreement that he later

acknowledged in a plea colloquy. The plea agreement waived Fryer’s right to appeal his

conviction and sentence. Although the advisory range for Fryer’s offense was 210 to 262

months, Fryer’s counsel secured a downward variance to a sentence of 144 months.

2 Fryer filed a notice of appeal several months after the deadline, and his appointed

counsel moved to withdraw in an Anders brief, stating that there were no nonfrivolous

grounds for review. 1

II.

A. The Anders Brief

Counsel appointed to represent a person accused of a crime may withdraw after a

conviction if there is nothing “in the record that might arguably support the appeal.”

Anders, 386 U.S. at 744. A motion to withdraw must show that counsel has “‘thoroughly

scoured the record in search of appealable issues’ and then ‘explain[ed] why the issues are

frivolous.’” United States v. Coleman, 575 F.3d 316, 319 (3d Cir. 2009) (quoting United

States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000)). In reviewing a motion to withdraw

accompanied by an Anders brief, we consider “1) whether counsel adequately fulfilled the

requirements of Third Circuit Local Appellate Rule 109.2(a), and 2) whether an

independent review of the record presents any nonfrivolous issues.” Simon, 679 F.3d at

114. “[I]f counsel has fulfilled her obligation under Anders, then we may limit our review

of the record to the issues counsel raised.” United States v. Langley, 52 F.4th 564, 569 (3d

Cir. 2022).

1 The District Court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review the adequacy of an Anders submission without deference but review factual findings for clear error. Simon v. Gov’t of Virgin Islands, 679 F.3d 109, 114 (3d Cir. 2012). When a defendant “challenges the validity of a guilty plea for the first time on direct appeal,” we review for plain error. United States v. Agarwal, 24 F.4th 886, 891 (3d Cir. 2022). 3 Counsel satisfied these requirements. He submitted a comprehensive brief outlining

three possible issues Fryer could raise on appeal: 1) venue and jurisdiction, 2) voluntariness

of the guilty plea, and 3) legality of the sentence. Each is either expressly rejected by the

relevant case law or readily controverted by the facts in the record. All leaving no doubt

that he conducted a “conscientious examination” of the record, Anders, 386 U.S. at 744,

“thoroughly scoured the record in search of appealable issues,” and explained “why the

issues are frivolous.” Coleman, 575 F.3d at 319. An independent review of the record,

limited to the issues raised in the Anders brief, confirms counsel’s conclusion so we “will

grant counsel’s Anders motion, and dispose of the appeal without appointing new counsel.”

L.A.R. 109.2(a).

B. Appellate Waiver

An appellate waiver is enforceable if 1) the appellant’s arguments are covered by

the waiver; 2) the waiver was knowing and voluntary; and 3) the waiver’s enforcement

would not lead to a miscarriage of justice. See United States v. Goodson, 544 F.3d 529,

536 (3d Cir. 2008).

The language of Fryer’s waiver covers his arguments; and the District Court’s

thorough plea colloquy ensured that Fryer made the waiver knowingly and voluntarily and

comprehended his possible sentence. Nor is Fryer’s sentence subject to challenge on appeal

since it falls below the guideline range and does not satisfy any of the other conditions

under 18 U.S.C. § 3742. See United States v. Corso, 549 F.3d 921, 927–28 (3d Cir. 2008);

Langley, 52 F.4th at 574. Under these circumstances, enforcing Fryer’s waiver would not

4 result in a miscarriage of justice. See United States v. Erwin, 765 F.3d 219, 228 (3d Cir.

2014).

III.

For these reasons, the Court grants counsel’s motion to withdraw and dismisses

Fryer’s appeal.