NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 18-2781 _____________
UNITED STATES OF AMERICA
v.
WAYNE A. FAHIE, Appellant ______________
APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS (D.C. Criminal No. 3-17-cr-00037-002) District Judge: Honorable Curtis V. Gomez ______________
Submitted Under Third Circuit L.A.R. 34.1(a) May 18, 2020 ______________
Before: GREENAWAY, JR., PHIPPS, and FUENTES, Circuit Judges.
(Opinion Filed: May 28, 2020)
______________
OPINION* ______________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. GREENAWAY, JR., Circuit Judge.
Appellant Wayne A. Fahie’s counsel (“Counsel”) moves for permission to
withdraw from representing Fahie on appeal, pursuant to Anders v. California, 386 U.S.
738 (1967). Counsel asserts that Fahie’s appeal raises no nonfrivolous issues. Fahie pled
guilty to two counts in a criminal information in the District Court for the Virgin Islands:
one count of conspiracy to possess with intent to distribute cocaine, pursuant to 21 U.S.C.
§ 846, and one count of possession with intent to distribute cocaine, pursuant to 21
U.S.C. 841(a)(1). Fahie was sentenced to sixty months’ imprisonment, a $200 special
assessment, 400 hours of community service, and a four-year term of supervised release.
He filed a timely appeal. For the reasons addressed below, we will grant Counsel’s
motion and affirm the judgment of conviction.
I. FACTUAL AND PROCEDURAL BACKGROUND
The charges stemmed from Fahie’s involvement in a drug smuggling scheme with
Roy E. Hodge, III, his co-defendant. On July 30, 2017, United States Customs and
Border Protection agents observed Hodge and Fahie, a Cape Air employee, repeatedly
entering and exiting a men’s bathroom at the airport in St. Thomas. Becoming
suspicious, the agents detained and questioned Hodge. Upon confronting him, he shared
his cell phone with the agents. A search of the cell phone revealed a series of text
messages between Hodge and Fahie, while a search of Hodge’s suitcase revealed four
brick-shaped objects that tested positive for cocaine.
Following the discovery of cocaine in Hodge’s suitcase, the agents took Fahie into
custody. A K-9 narcotics dog alerted to the presence of narcotics on Fahie’s person. The
2 agents inspected Fahie’s passport and cell phone to confirm his contact with Hodge.
After the agents confirmed that Fahie was in contact with Hodge, both men were arrested
and charged with conspiracy to possess with intent to distribute four kilograms or more of
cocaine and possessing with intent to distribute cocaine.
On February 1, 2018, Fahie entered a straight plea1 in the District Court for the
Virgin Islands to the conspiracy and possession counts. At the change of plea hearing,
Fahie admitted to the factual predicates for the crime. The District Court accepted
Fahie’s guilty plea.
On July 11, 2018, Fahie received a sentence of sixty months’ imprisonment (the
mandatory minimum term of imprisonment), followed by a four-year term of supervised
release. The District Court determined that the safety valve provision found in in 18
U.S.C. § 3553(f) was unavailable to Fahie. The District Court also imposed 400 hours of
community service and a $200 special assessment on Fahie.
On August 9, 2018, Fahie filed a timely notice of appeal. On July 29, 2019,
Counsel moved to withdraw pursuant to the standards set forth in Anders v. California.
Fahie has not filed a brief.
II. JURISDICTION
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
1 A straight plea is a plea entered without the benefit of a plea agreement. 3 III. STANDARD OF REVIEW
Appellate counsel must “support his client’s appeal to the best of his ability.”
Anders, 386 U.S. at 744. However, if an attorney representing an indigent criminal
defendant finds that an appeal would be wholly frivolous, Anders delineates the process
in which an attorney may request to withdraw from continued representation. Id.
Pursuant to Anders, counsel requesting to withdraw must satisfactorily show the court
that they have “scoured the record [for] appealable issues” and “explain why the issues
are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000). The court
then engages in a two-part inquiry: “(1) whether counsel adequately fulfilled [Third
Circuit Local Appellate Rule 109.2’s] requirements;[2] and (2) whether an independent
review of the record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d
296, 300 (3d Cir. 2001) (citations omitted). If an appeal is judged to be wholly frivolous,
this Court must “grant trial counsel’s Anders motion, and dispose of the appeal without
appointing new counsel.” Id. (quoting 3d Cir. L.A.R. 109.2(a)). On the other hand, “[i]f
the panel finds arguable merit to the appeal, or that the Anders brief is inadequate to
assist the court in its review, it will appoint substitute counsel, order supplemental
briefing and restore the case to the calendar.” L.A.R.109.2(a).
2 Third Circuit Local Appellate Rule 109.2(a) provides in relevant part that: “[w]here, upon review of the district court record, counsel is persuaded that the appeal presents no issue of even arguable merit, counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738 (1967), which must be served upon the appellant and the United States[.]” 4 IV. ANALYSIS
We are satisfied that the brief submitted by Counsel contains a “conscientious
examination of the record” for issues of arguable merit and Counsel has therefore
fulfilled the requirements set forth in Anders. As we have previously stated, “[i]t is well
established that a criminal defendant’s unconditional, knowing and voluntary plea of
guilty waives all non-jurisdictional issues.” Washington v. Sobina, 475 F.3d 162, 165 (3d
Cir. 2007) (citations omitted). Here, the District Court clearly had jurisdiction pursuant
to 18 U.S.C. § 3231. No appealable issue exists with respect to jurisdiction.
As Counsel noted, there is also no appealable issue as to the validity of the plea.
Based on the record before us, we are satisfied that the district court complied with the
constitutional requirements and Federal Rule of Criminal Procedure 11. A criminal
defendant’s guilty plea is considered valid if entered into “knowing[ly], voluntar[ily], and
intelligent[ly].” United States v. Tidwell, 521 F.3d 236, 251 (3d Cir.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 18-2781 _____________
UNITED STATES OF AMERICA
v.
WAYNE A. FAHIE, Appellant ______________
APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS (D.C. Criminal No. 3-17-cr-00037-002) District Judge: Honorable Curtis V. Gomez ______________
Submitted Under Third Circuit L.A.R. 34.1(a) May 18, 2020 ______________
Before: GREENAWAY, JR., PHIPPS, and FUENTES, Circuit Judges.
(Opinion Filed: May 28, 2020)
______________
OPINION* ______________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. GREENAWAY, JR., Circuit Judge.
Appellant Wayne A. Fahie’s counsel (“Counsel”) moves for permission to
withdraw from representing Fahie on appeal, pursuant to Anders v. California, 386 U.S.
738 (1967). Counsel asserts that Fahie’s appeal raises no nonfrivolous issues. Fahie pled
guilty to two counts in a criminal information in the District Court for the Virgin Islands:
one count of conspiracy to possess with intent to distribute cocaine, pursuant to 21 U.S.C.
§ 846, and one count of possession with intent to distribute cocaine, pursuant to 21
U.S.C. 841(a)(1). Fahie was sentenced to sixty months’ imprisonment, a $200 special
assessment, 400 hours of community service, and a four-year term of supervised release.
He filed a timely appeal. For the reasons addressed below, we will grant Counsel’s
motion and affirm the judgment of conviction.
I. FACTUAL AND PROCEDURAL BACKGROUND
The charges stemmed from Fahie’s involvement in a drug smuggling scheme with
Roy E. Hodge, III, his co-defendant. On July 30, 2017, United States Customs and
Border Protection agents observed Hodge and Fahie, a Cape Air employee, repeatedly
entering and exiting a men’s bathroom at the airport in St. Thomas. Becoming
suspicious, the agents detained and questioned Hodge. Upon confronting him, he shared
his cell phone with the agents. A search of the cell phone revealed a series of text
messages between Hodge and Fahie, while a search of Hodge’s suitcase revealed four
brick-shaped objects that tested positive for cocaine.
Following the discovery of cocaine in Hodge’s suitcase, the agents took Fahie into
custody. A K-9 narcotics dog alerted to the presence of narcotics on Fahie’s person. The
2 agents inspected Fahie’s passport and cell phone to confirm his contact with Hodge.
After the agents confirmed that Fahie was in contact with Hodge, both men were arrested
and charged with conspiracy to possess with intent to distribute four kilograms or more of
cocaine and possessing with intent to distribute cocaine.
On February 1, 2018, Fahie entered a straight plea1 in the District Court for the
Virgin Islands to the conspiracy and possession counts. At the change of plea hearing,
Fahie admitted to the factual predicates for the crime. The District Court accepted
Fahie’s guilty plea.
On July 11, 2018, Fahie received a sentence of sixty months’ imprisonment (the
mandatory minimum term of imprisonment), followed by a four-year term of supervised
release. The District Court determined that the safety valve provision found in in 18
U.S.C. § 3553(f) was unavailable to Fahie. The District Court also imposed 400 hours of
community service and a $200 special assessment on Fahie.
On August 9, 2018, Fahie filed a timely notice of appeal. On July 29, 2019,
Counsel moved to withdraw pursuant to the standards set forth in Anders v. California.
Fahie has not filed a brief.
II. JURISDICTION
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
1 A straight plea is a plea entered without the benefit of a plea agreement. 3 III. STANDARD OF REVIEW
Appellate counsel must “support his client’s appeal to the best of his ability.”
Anders, 386 U.S. at 744. However, if an attorney representing an indigent criminal
defendant finds that an appeal would be wholly frivolous, Anders delineates the process
in which an attorney may request to withdraw from continued representation. Id.
Pursuant to Anders, counsel requesting to withdraw must satisfactorily show the court
that they have “scoured the record [for] appealable issues” and “explain why the issues
are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000). The court
then engages in a two-part inquiry: “(1) whether counsel adequately fulfilled [Third
Circuit Local Appellate Rule 109.2’s] requirements;[2] and (2) whether an independent
review of the record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d
296, 300 (3d Cir. 2001) (citations omitted). If an appeal is judged to be wholly frivolous,
this Court must “grant trial counsel’s Anders motion, and dispose of the appeal without
appointing new counsel.” Id. (quoting 3d Cir. L.A.R. 109.2(a)). On the other hand, “[i]f
the panel finds arguable merit to the appeal, or that the Anders brief is inadequate to
assist the court in its review, it will appoint substitute counsel, order supplemental
briefing and restore the case to the calendar.” L.A.R.109.2(a).
2 Third Circuit Local Appellate Rule 109.2(a) provides in relevant part that: “[w]here, upon review of the district court record, counsel is persuaded that the appeal presents no issue of even arguable merit, counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738 (1967), which must be served upon the appellant and the United States[.]” 4 IV. ANALYSIS
We are satisfied that the brief submitted by Counsel contains a “conscientious
examination of the record” for issues of arguable merit and Counsel has therefore
fulfilled the requirements set forth in Anders. As we have previously stated, “[i]t is well
established that a criminal defendant’s unconditional, knowing and voluntary plea of
guilty waives all non-jurisdictional issues.” Washington v. Sobina, 475 F.3d 162, 165 (3d
Cir. 2007) (citations omitted). Here, the District Court clearly had jurisdiction pursuant
to 18 U.S.C. § 3231. No appealable issue exists with respect to jurisdiction.
As Counsel noted, there is also no appealable issue as to the validity of the plea.
Based on the record before us, we are satisfied that the district court complied with the
constitutional requirements and Federal Rule of Criminal Procedure 11. A criminal
defendant’s guilty plea is considered valid if entered into “knowing[ly], voluntar[ily], and
intelligent[ly].” United States v. Tidwell, 521 F.3d 236, 251 (3d Cir. 2008) (citation
omitted). To ensure the validity of a plea, the district “court must address the defendant
personally in open court.” Fed. R. Crim. P. 11(b)(1). The district court must inform and
ensure the defendant understands his rights, the nature of the charges, and the direct
implications of entering a plea. United States v. Schweitzer, 454 F.3d 197, 202-03 (3d
Cir. 2006) (citing Boykin v. Alabama, 395 U.S. 238, 242-44 (1969) and Fed. R. Crim. P.
11(b)).
To challenge the validity of his guilty plea, Fahie has the burden of showing that
the requirements of Federal Rule of Criminal Procedure 11 and the constitutional
requirements enumerated in Boykin have not been satisfied. Counsel found no basis to
5 support an argument that Fahie’s plea was unknowing, involuntary, or unintelligent. Our
review of the plea hearing transcript reveals that the District Court followed all of the
requirements of Federal Rule of Criminal Procedure 11. At the change of plea hearing,
Fahie informed the District Court that he had enough time to discuss with his counsel the
charges against him, the potential maximum and minimum penalties, the applicable
Sentencing Guidelines, and the consequences of entering a straight plea to the Second
Amended Information. Fahie stated he was satisfied with the representation of his
counsel. He indicated he understood his constitutional rights, which he waived. He also
stated he was entering the plea voluntarily and that he had not been coerced or threatened
to do so. Further, Fahie admitted to the factual basis for the plea. We therefore agree
with Counsel’s conclusion that the record shows that Fahie’s plea was knowingly and
voluntarily made.
With respect to sentencing, a reviewing court must determine whether the sentence
was both procedurally and substantively reasonable. United States v. Tomko, 562 F.3d
558, 566-67 (3d Cir. 2009) (en banc). We review both procedural and substantive
reasonableness under an abuse of discretion standard. United States v. Wise, 515 F.3d
207, 217-18 (3d Cir. 2008). Since the sentence imposed by the district court was both
procedurally and substantively reasonable, such review is not a basis for appeal.
An appellate court first reviews a district court’s sentence for “no significant
procedural error.” Gall v. United States, 552 U.S. 38, 50-51 (2007); see also United
States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). When imposing a sentence, a district
court must correctly calculate the applicable Guidelines range, entertain any variances or
6 departures, and consider all the factors set forth in 18 U.S.C. § 3553(a). United States v.
Levinson, 543 F.3d 190, 194-95 (3d Cir. 2008).
In this case, the District Court correctly calculated the Guidelines range. Fahie’s
base offense level pursuant to U.S.S.G. § 2D1.1 was 28. The offense level was adjusted
to 25, based on a three-point reduction for acceptance of responsibility, resulting in a
sentencing range of 57 to 71 months’ imprisonment. Fahie faced a mandatory minimum
term of imprisonment of sixty months, pursuant to 21 U.S.C. § 841(b)(1)(B).
However, if Fahie satisfied the criteria set forth in 18 U.S.C. § 3553(f), commonly
referred to as the safety valve provision, the mandatory minimum sentence would not
apply. The record shows that the District Court determined that the mitigating effect of
the safety valve provision was inapplicable to Fahie. Fahie entered a straight plea and
provided no assistance to the government. At the sentencing hearing, Fahie’s counsel
agreed that the safety valve provision was inapplicable to Fahie. No variances were
sought, no departure motions were made, and the District Court considered each of the
§ 3553(a) factors. Since the District Court followed the three-step procedure, no
procedural error existed.
If a sentence is found to be procedurally reasonable, a court will next look to its
substance. Tomko, 562 F.3d at 567. A sentence will be deemed substantively reasonable
“unless no reasonable sentencing court would have imposed the same sentence on [the
defendant] for the reasons the district court provided.” Id. at 568. Here, after going
through the correct procedural steps, the District Court imposed a sixty-month term of
imprisonment, the lowest sentence possible due to the mandatory minimum. Viewing the
7 record as a whole, we find the sentence substantively reasonable. Since the sentence was
both procedurally and substantively reasonable, any challenge to it would be meritless.
V. CONCLUSION
After reviewing the record, we agree with Counsel that that there are no
nonfrivolous issues for appeal. Accordingly, we will grant Counsel’s motion to withdraw
and affirm the District Court’s judgment of conviction. Pursuant to 3d Cir. L.A.R.
109.2(b), Counsel is also relieved of the obligation to file a petition of certiorari in the
Supreme Court of the United States.