United States v. Yasheam Washington

• Court: Court of Appeals for the Third Circuit
• Decided: June 10, 2024
• Docket: 23-1603
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 23-1603

UNITED STATES OF AMERICA

v.

YASHEAM WASHINGTON, a/k/a Yasheem Washington, Appellant

Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-19-cr-00291-001) District Judge: Honorable Harvey Bartle, III

Submitted Under Third Circuit L.A.R. 34.1(a) June 7, 2024

Before: HARDIMAN, PORTER and AMBRO, Circuit Judges

(Opinion filed: June 10, 2024)

OPINION*

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

Yasheam Washington appeals the District Court’s judgment sentencing him to 96

months’ imprisonment. His counsel moves to withdraw, asserting in his Anders brief that

he identified no non-frivolous issues for appellate review. We agree and thus grant the

motion and affirm.

I. Background

This is Washington’s second appeal to our Court. In 2019, he was found guilty of

possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and sentenced to 120 months’

imprisonment (the statutory maximum), three years of supervised release, and a special

assessment of $100. His Guidelines sentencing range of 140-175 months was based in part

on the District Court’s finding that Washington had two prior convictions for a “crime of

violence”: second-degree aggravated assault and second-degree robbery. See 18 Pa. Cons.

Stat. §§ 2702(a), 3701(a)(1)(iv); U.S.S.G. § 2K2.1(a)(2).1 Washington appealed his

conviction and sentence, arguing that, under Borden v. United States, 593 U.S. 420 (2021),

his robbery conviction was not a crime of violence for purposes of calculating his

sentencing range. We agreed and remanded for resentencing, though we rejected all other

challenges he raised. See United States v. Washington, No. 21-2740, 2023 WL 128928 (3d

Cir. Jan. 9, 2023).

One issue at resentencing was whether Washington’s other prior conviction for

aggravated assault qualified as a crime of violence. That question was pending before us

1 The record does not indicate under which subsection of Pennsylvania’s aggravated assault statute Washington was convicted. 2 at the time, and the District Court, “read[ing] the tea leaves,” sided with Washington and

ruled that it did not. App. 129; see United States v. Jenkins, 68 F.4th 148, 150 (3d Cir.

2023). It thus calculated a total offense level of 18 (as opposed to 24 if aggravated assault

were a crime of violence), resulting in a Guidelines range of 57-71 months of imprisonment

(rather than 100-125 months) given Washington’s criminal history category of VI. The

Government sought an upward variance to the statutory maximum, citing his significant

criminal history, defiance of court orders, and belligerent behavior during trial, among

others. Washington requested a sentence below the Guidelines range, emphasizing his

challenging childhood and positive response to new medication.

The District Court varied upward and imposed a custodial 96-month term—two

years shorter than his initial sentence—three years of supervised release, and a $100 special

assessment. In discussing the various sentencing factors outlined in 18 U.S.C. § 3553(a),

it first stressed the seriousness of Washington’s firearms offense, noting Philadelphia “is

awash in guns, in firearms and in violence[,] and the Court must take action to try to deal

with that very, very difficult and complex problem.” App. 130. The Court also stressed

the “very serious criminal history” of Washington and the need to “promote respect for the

law” and deter him and other convicted felons from possessing firearms. App. 130-31. It

then acknowledged Washington’s “horrific” upbringing and commended him for his self-

improvement but noted he still “[was] responsible for [his] actions” and had only himself

to blame. Id. Under those circumstances, the Court concluded a 96-month custodial

sentence was sufficient but not greater than necessary. Neither party objected.

3 Washington filed a pro se notice of appeal. His counsel moved to withdraw his

representation under Local Appellate Rule 109.2(a) and Anders v. California, 386 U.S. 738

(1967), and filed a supporting brief. Washington responded with his own pro se brief.

II. Discussion2

Having received an Anders motion, our role restricts to determining (1) whether

counsel’s brief adequately fulfills the requirements of Rule 109.2(a), and (2) whether an

independent review of the record presents any non-frivolous issues. United States v.

Langley, 52 F.4th 564, 569 (3d Cir. 2022). “Where the Anders brief initially appears

adequate on its face,” as is the case here, we will rely on it to guide our review of the record.

United States v. Youla, 241 F.3d 296, 301 (3d Cir. 2001) (citation omitted). Counsel’s brief

observes that Washington’s sentence is within statutory limits, see 18 U.S.C. §§ 924(a)(8),

3583(b)(2), 3013(a)(2)(A), and identifies as potentially appealable only the reasonableness

of Washington’s sentence (correctly so, as we have already affirmed his conviction). But,

as counsel and the Government agree, that issue is meritless.

We assess the sentence’s reasonableness under the familiar abuse-of-discretion

standard and proceed in two stages. United States v. Tomko, 562 F.3d 558, 564, 567 (3d

Cir. 2009) (en banc) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). We begin by

ensuring the District Court “committed no significant procedural error, such as failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly

2 We have jurisdiction over Washington’s appeal under 28 U.S.C. §§ 1291 and 3742(a). 4 erroneous facts, or failing to adequately explain the chosen sentence—including an

explanation for any deviation from the Guidelines range.” Id. at 567 (quoting Gall, 552

U.S. at 51). If we are satisfied at step one, we then review the sentence for substantive

reasonableness, where we “focus [not] on one or two factors, but on the totality of the

circumstances.” Id. (citations omitted). Relevant here, “[t]he reasonableness of a sentence

depends not on the [D]istrict [C]ourt’s adherence to the range recommended by the

Guidelines[.]” United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006).

We conclude that the Court’s sentence is both procedurally and substantively

reasonable. It correctly calculated the Guidelines range and—after hearing argument from

both parties and allowing Washington to speak—carefully examined the relevant 18 U.S.C.

§ 3553(a) factors and explained its reasons for imposing a sentence above the

recommended range. The Court thus committed no procedural errors, and any appeal on

that basis would be frivolous. We also see no meritorious challenge to the substantive

reasonableness of the sentence. Under the totality of the circumstances, we cannot

conclude that “no reasonable sentencing court would have imposed the same sentence …

for the reasons the [D]istrict [C]ourt provided.” Tomko, 562 F.3d at 568. Even though the

term exceeds what the Guidelines recommend, we may not presume its unreasonableness

simply for falling outside the advisory range, id. at 567, as the Guidelines are just that—

advisory—and a district court has “broad discretion in imposing a sentence within [the]

statutory range,” United States v. Booker, 543 U.S. 220, 233 (2005); see, e.g., Schweitzer,

454 F.3d at 201-02, 204 (upholding upward variance to 84 months from recommended

5 Guidelines range of 46-57 months). Our review of the record, guided by counsel’s brief,

thus reveals no non-frivolous issues.

“[E]ven if we were to consider the issues identified … in [Washington’s] pro se

brief, which is not required because we find counsel’s Anders brief adequate, … our

conclusion would not change.” Langley, 52 F.4th at 575 (citation omitted). Washington

identifies two issues: (1) neither of his prior convictions are crimes of violence, so the

District Court erred in “giv[ing] [him] double the time”; and (2) his sentence is excessive

and a result of his “going to trial and not taking [his] initial deal.” Washington Br. 4-5.

Each is frivolous.

First, the District Court agreed with Washington that his conviction for aggravated

assault, like his conviction for aggravated robbery, was not a crime of violence and

calculated his sentencing range accordingly. But, as explained, it was neither bound by it

nor abused its discretion in varying upward. Second, Washington’s conclusory claim that

he is “the only person who got this much of a sentence for his 1st offense” is both

confusing—this was not his first offense by any means—and a far cry from showing that

his “circumstances exactly paralleled” those of similarly situated defendants who received

lower sentences, as a defendant challenging his sentence as creating unwarranted

disparities must do. United States v. Iglesias, 535 F.3d 150, 161 n.7 (3d Cir. 2008) (citation

omitted).3

3 We don’t make much of Washington’s claim that the length of the sentence imposed by the District Court was based on his going to trial rather than pleading guilty. Nothing in the record even remotely suggests the Court held that decision (or his choice to represent himself at his second trial) against him at sentencing. 6 Because we can identify no other potential grounds for appellate review, we grant

counsel’s Anders motion and affirm the District Court’s judgment.