USA v. Kevin Barne

Filing

NOT PRECEDENTIAL OPINION Coram: MCKEE, Chief Judge *, HARDIMAN and RENDELL, Circuit Judges. For the reasons stated above, we will grant counsel's motion to withdraw and affirm the District Court's judgment of sentence. Total Pages: 7. Judge: MCKEE Authoring. *(Judge McKee concluded his term as Chief of the U.S. Court of Appeals for the Third Circuit on September 30, 2016).

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 15-3604
________________
UNITED STATES OF AMERICA
v.

KEVIN BARNES,
Appellant
________________
On Appeal from the United States District Court
for the District of Delaware
In (D. Del. No. 1-14-cr-00047-001)
District Judge: Hon. Richard G. Andrews
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 19, 2016
Before: McKEE, Chief Judge,1 RENDELL and HARDIMAN, Circuit Judges
(Opinion Filed: January 26, 2017)
___________
OPINION
___________

1

Judge McKee concluded his term as Chief of the U.S. Court of Appeals for the Third Circuit on
September 30, 2016.
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute
binding precedent.
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McKEE, Chief Judge.
Kevin Barnes appeals the judgment of sentence the United States District Court for
the District of Delaware imposed after accepting Barnes’s guilty plea. Barnes pled guilty
to all three counts of an indictment pursuant to a plea agreement and was sentenced to 80
months imprisonment, followed by four years of supervised release. The terms of the plea
agreement provided that Barnes would waive his right to appeal with certain specified
exceptions.2 For the following reasons, we will affirm the judgment of sentence.
I.
We first address the Anders Brief and accompanying Motion to Withdraw3 Barnes’s
counsel has filed. In reviewing such a motion, we are required to determine “(1) whether
counsel[’s] [brief] adequately fulfill[s] [Third Circuit Local Appellate Rule 109.2(a)’s]
requirements; and (2) whether an independent review of the record presents any
nonfrivolous issues.”4 Defense counsel’s brief must “(1) satisfy the court that counsel has
thoroughly examined the record in search of appealable issues, and (2) explain why the
issues are frivolous.”5 If we are convinced that counsel’s brief satisfies the requirements
of Rule 109.2(a), identified all appealable issues, and explained why those issues are

2

These exceptions were outlined in paragraph 13 of the plea agreement, which provided as
follows: “Notwithstanding the foregoing, the Defendant reserves his right (1) to file an appeal or
other collateral motion on the grounds that he received ineffective assistance of counsel; and (2)
to appeal his sentence if: (a) the government appeals from the sentence, (b) the Defendant’s
sentence exceeds the statutory maximum for the offense set forth in the United States Code, or (c)
the sentence unreasonably exceeds the Sentencing Guidelines range determined by the District
Court in applying the United States Sentencing Guidelines.”
3
See Anders v. California, 386 U.S. 738 (1967).
4
United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).
5
Id.
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frivolous, we conduct our own review of the record. Our independent review is confined
“to those portions of the record identified by an adequate Anders brief . . . [and] those issues
raised in Appellant’s pro se brief.”6
Counsel’s Brief satisfies Rule 109.2(a). It identifies a potentially appealable issue—
“whether the sentence imposed by the District Court was procedurally and substantively
reasonable”—and determines that the issue would be frivolous. The Brief adequately
discusses our precedent and any relevant cases from the Supreme Court, and it applies the
law to the facts of this case.
Therefore, we will grant counsel’s Motion to Withdraw.
II.
In his briefs,7 Barnes alleges that he was provided with ineffective assistance of
counsel. Subsumed in that ineffective assistance claim are Barnes’s arguments that counsel
did not adequately inform him of potential grounds for a sentencing departure, and did not
raise duress or mitigating factors at sentencing; that counsel did not advise Barnes of the
availability of a possible justification defense (and did not raise that defense);8 and that

6

Id. at 301.
Barnes filed his first Opening Brief on April 11, 2106. After the Government filed its Response
on May 13, 2016, Barnes filed another Brief on June 23, 2016, which we will construe as a Reply.
For clarity, we will consider the arguments in both briefs together.
8
On this issue, we explained in United States v. Paolello: “[I]n a criminal case, a justification
defense is dependent upon the defendant not having recklessly placed himself in a situation in
which he would be forced to engage in criminal conduct.” 951 F.2d 537, 541 (3d Cir. 1991). We
note that during the District Court guilty plea colloquy, Barnes admitted that he possessed three
handguns because he kept a large amount of heroin in his home and needed protection.
7

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counsel labored under a conflict of interest. 9 Barnes also argues that his right to due
process of law was denied.
When deciding whether a waiver of appellate rights—like the one in Barnes’s plea
agreement—bars an appeal, we consider: “(1) whether the waiver ‘of the right to appeal
[his] sentence was knowing and voluntary;’ (2) ‘whether one of the specific exceptions set
forth in the agreement prevents the enforcement of the waiver,’ i.e., what is the scope of
the waiver and does it bar appellate review of the issue pressed by the defendant; and (3)
‘whether enforcing the waiver would work a miscarriage of justice.’”10
Though Barnes argues to the contrary, his plea agreement does include a waiver of
the right to appeal, with specified exceptions. Barnes was specifically informed that the
plea agreement contained a clause (Paragraph 13) wherein he agreed to forego his right to
appeal, except in the limited circumstances specified in that paragraph.
The sentencing transcript confirms his acceptance of the plea agreement terms.11
Barnes assured the District Court that his plea was voluntary and stated that he had read

9

Although it is not altogether clear, it appears that the conflict of interest claim is asserted as a
reason for counsel’s purported ineffective assistance. See Opening Br., at 10. (“Counsel . . . had
a choice to pursue the justification defense in addition to pursuing the mitigation argument, but
failed to do so. There is no reasonable argument as to why Counsel failed to effectively represent
the interests of Appellant therefore supporting that Counsel had a conflict of interest. . . .”). Barnes
asserts that counsel’s failure to present the justification defense on his behalf constitutes a conflict
of interest. However, he has not pointed to any plausible alternative defense strategy and we see
nothing on this record that would even suggest that his attorney failed to pursue a given strategy
because of conflicting loyalties or interests. See United States v. Gambino, 864 F.2d 1064, 1070–
71 (3d Cir. 1988). Moreover, ineffective assistance of counsel claims are not considered on direct
appeal. See United States v. Thornton, 327 F.3d 268, 271–72 (3d Cir. 2003).
10
United States v. Goodson, 544 F.3d 529, 536 (3d Cir. 2008) (quoting United States v. Jackson,
523 F.3d 234, 243–44 (3d Cir. 2008)).
11
App., at 23–30.
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the plea agreement and had no questions about it.12 During the change of plea colloquy,
the District Court had the Assistant United States Attorney go over the terms of that
agreement, paragraph by paragraph.13 In doing so, the A.U.S.A. quoted key provisions of
Paragraph 13, and Barnes confirmed that he understood the agreement.14 We therefore
conclude that Barnes’s waiver was knowing and voluntary, and our review of the record
also satisfies us that no miscarriage of justice will result from enforcing it.15
According to the plea agreement, Barnes did not waive his right to allege that
counsel was ineffective. However, claims of ineffective assistance of counsel, like those
Barnes attempts to raise in his pro se briefs, are not normally cognizable on direct appeal.
They must, instead, be raised in a collateral proceeding.16 We explained the reason for this
in United States v. Thornton.17 Accordingly, we will not now consider Barnes’ ineffective
assistance of counsel claims.
We note, however, that one of Barnes’s allegations is that counsel was ineffective
for “not informing [him] that the 5K2.12 was an available argument for a downward
departure.” In doing so, he notes: “I did not waive any rights . . . to argue for a downward

12

Id.
Id.
14
Id.
15
See Goodson, 544 F.3d at 540–41 n.11; United States v. Khattak, 273 F.3d 557, 561–63 (3d Cir.
2001) (outlining factors a court should consider when reviewing a waiver: “[t]he clarity of the
error, its gravity, its character . . . , the impact of the error on the defendant, the impact of correcting
the error on the government, and the extent to which the defendant acquiesced in the result”).
16
United States v. Haywood, 155 F.3d 674, 678 (3d Cir. 1998) (“Claims of ineffective assistance
of counsel generally are not entertained on direct appeal. We have repeatedly held that the proper
avenue for pursuing such claims is through a collateral proceeding in which the factual basis for
the claim may be developed.” (internal citations and quotation marks omitted)).
17
327 F.3d 268, 271–72 (3d Cir. 2003); Haywood, 155 F.3d at 678.
13

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departure, therefore my counsel did not adequately represent my interests by failing to
argue or present the argument for a 5K2.12 departure.” To the extent that he is challenging
the denial of a 5K2.12 departure, he is asking us to review his sentence, but the
circumstances specified in his plea agreement that would allow such an appeal are absent.
The same is true of Barnes’s claim that counsel was ineffective for not raising duress or
mitigating factors at sentencing. To the extent that he is challenging his sentence, the claim
has been waived. To the extent that he is arguing that his attorney was ineffective, the
claim will not be addressed on direct appeal.
Barnes also claims that he was denied due process, but it is not clear whether he is
asserting a substantive or procedural due process claim apart from a challenge to his
sentence, or whether he is asserting that claim within the context of his ineffective
assistance of counsel claim. In his Reply pro se Brief, he states: “I feel denial of effective
assistance of counsel has violated my due process rights under the Fifth Amendment
because my counsel’s failure to properly investigate and present mitigating evidence to
either the court or to the Government.”18 Notwithstanding Barnes’s citation to the Fifth
Amendment (due process clause), the context of that assertion suggests that it is a Sixth
Amendment ineffective assistance of counsel claim. As we have already explained, we
will not address an ineffective assistance claim on direct appeal. Moreover, our
examination of the record establishes that there was no procedural error in imposing

18

Reply pro se Br., at 8.
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sentence, and the 80-month sentence is reasonable under all of the circumstances and, thus,
not a denial of substantive due process.19
III.
For the reasons stated above, we will grant counsel’s Motion to Withdraw and
affirm the District Court’s judgment of sentence.

Barnes further insists that the District Court erred “by sentencing [him] without properly
following the procedures set forth in [Federal Rule of Criminal Procedure] 32” because he was not
“given a copy of his [presentence report] until the morning of sentencing.” But at his sentencing,
he swore before the District Court that he had read the PSR, discussed it with his attorney, and had
told his attorney everything that he wanted to about the PSR. Accordingly, the fact that Barnes
himself may not have received the PSR until the morning of the sentencing provides no basis for
relief. To the extent that Barnes raises this issue as a procedural due process claim, our review of
the sentencing proceeding establishes that any such claim would be without merit.
19

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