USA v. David Steele

Filing

NOT PRECEDENTIAL OPINION, We will grant defense counsel's motion to withdraw under Anders and affirm the District Court's judgment and commitment Order. Coram: MCKEE and RESTREPO, Circuit Judges, and HORNAK*, District Judge. Total Pages: 6. Judge: HORNAK Authoring. *(Honorable Mark R. Hornak, District Judge for the United States District Court for the Western District of Pennsylvania, sitting by designation).

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Date Filed: 03/16/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-1666
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UNITED STATES OF AMERICA
v.
DAVID STEELE,
Appellant
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ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. No. 3-15-cr-00196-001)
District Judge: Honorable Richard P. Conaboy
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Submitted Under Third Circuit LAR 34.1(a)
November 8, 2016
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Before: McKEE and RESTREPO, Circuit Judges, and HORNAK,* District Judge.
(Filed: March 16, 2017)
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OPINION**
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*

Honorable Mark R. Hornak, District Judge for the United States District Court
for the Western District of Pennsylvania, sitting by designation.
**

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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HORNAK, District Judge.
Defendant David Steele pleaded guilty to theft of government property and was
sentenced to a term of imprisonment of twelve months and one day. Steele appealed, and
defense counsel moved to withdraw from the case pursuant to Anders v. California, 386
U.S. 738 (1967). For the reasons that follow, we will affirm the District Court’s judgment
and grant defense counsel’s motion to withdraw.
I
On September 11, 2015, after discovering evidence of theft from the postal service
in Steele’s home, the United States filed a one-count criminal information charging
Steele with theft of government property. With the assistance of defense counsel, Steele
negotiated a plea agreement with the United States and pled guilty to the information.
Steele’s Presentence Investigation Report (“PSR”) included a calculated Sentencing
Guidelines range of six to twelve months, which was based on a Total Offense Level of 8
and a Criminal History Category of III. Steele did not object to the PSR’s Guidelines
calculation, but defense counsel did argue at the sentencing hearing that in lieu of
imprisonment, the District Court should impose a sentence that consisted of probation
with conditions such as home detention. The District Court initially sentenced Steele to
twelve months imprisonment but, at the request of defense counsel, changed the sentence
to a term of imprisonment for twelve months and one day so that Steele could earn good
time credits while in prison. Steele filed a timely appeal, and defense counsel thereafter
filed a motion to withdraw as counsel under Anders. Steele did not file a pro se brief on
the merits of his appeal by July 31, 2016, as we had authorized him to do.
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II
In Anders, the Supreme Court explained that “if counsel finds his [client’s appeal]
to be wholly frivolous, after a conscientious examination of it, he should so advise the
court and request permission to withdraw.” Anders, 386 U.S. at 744. Defense counsel
must file a brief along with his motion to withdraw that discusses “anything in the record
that might arguably support the appeal.” Id. We must then decide “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
v. Gov't of the Virgin Islands, 679 F.3d 109, 114 (3d Cir. 2012), as amended (May 16,
2012). Issues are frivolous when they are not arguable on their merits. Id. We exercise
plenary review to make the necessary determinations.1 Id.
A.
An Anders brief is adequate under L.A.R. 109.2(a)2 when defense counsel (1)
demonstrates that he “thoroughly examined the record in search of appealable issues, and

1

The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2

L.A.R. 109.2(a) states:
Where, 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. The United States must file a brief in response. Appellant
may also file a brief in response pro se. After all briefs have been filed, the
clerk will refer the case to a merits panel. If the panel agrees that the appeal
is without merit, it will grant counsel's Anders motion, and dispose of the
appeal without appointing new counsel. If the panel finds arguable merit to
the appeal, or that the Anders brief is inadequate to assist the court in its
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(2) [] explain[s] why the issues are frivolous.” United States v. Youla, 241 F.3d 296, 300
(3d Cir. 2001). In this case, we conclude that defense counsel’s Anders brief is adequate.
After thoroughly examining the record, defense counsel noted three issues that Steele
could potentially raise on appeal following his guilty plea: (1) whether the District Court
had jurisdiction; (2) whether his guilty plea was valid; and (3) whether the sentence
imposed was legal and reasonable. See United States v. Broce, 488 U.S. 563, 569 (1989).
Citing to the record and applicable legal authority, defense counsel then delineated why
such issues are not arguable on their merits. He explained that (1) there is no argument
that the District Court did not have jurisdiction, (2) the plea colloquy fully complied with
Federal Rule of Criminal Procedure 11, and (3) the sentence imposed was legal and
reasonable based on current law and the sentencing factors set forth in 18 U.S.C. §
3553(a). Accordingly, we are satisfied that defense counsel’s Anders brief adequately
fulfilled the requirements of L.A.R. 109.2(a).
B.
The second step of our analysis requires us to independently review the record for
non-frivolous, appealable issues. However, in doing so, we need not completely reinvent
the wheel. Youla, 241 F.3d at 301. Rather, “[w]here the Anders brief initially appears
adequate on its face, the proper course is for the appellate court to be guided in reviewing
the record by the Anders brief itself.” Id. (internal quotation marks omitted).
review, it will appoint substitute counsel, order supplemental briefing and
restore the case to the calendar. The panel will also determine whether to
continue the appointment of current counsel or to direct the clerk to
discharge current counsel and appoint new counsel.
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Examining the three issues that defense counsel identified, we hold that there are
no non-frivolous issues for appeal in this case. First, we conclude that the District Court
incontestably had jurisdiction under 18 U.S.C. § 3231 because Steele was charged with
violating 18 U.S.C. § 641. Second, the record indicates that the District Court’s plea
colloquy fully complied with the requirements of Rule 11. Specifically, during the Plea
Hearing, the Magistrate Judge ensured that Steele understood the nature of the charge
against him and the rights that he would be foregoing by pleading guilty. 3 Accordingly,
we conclude that Steele’s guilty plea was knowing and voluntary and that there is no nonfrivolous argument to the contrary.
Third, we conclude that the sentence imposed by the District Court was both
lawful and reasonable. We evaluate both the procedural and substantive reasonableness
of a sentence using an abuse of discretion standard. United States v. Grober, 624 F.3d
592, 599 (3d Cir. 2010). Under our holding in United States v. Gunter, 462 F.3d 237 (3d
Cir. 2006), the District Court must take three procedural steps when determining a
sentence: (1) correctly calculate the Guidelines sentencing range; (2) formally rule on any
departure motions by either party; and (3) consider the relevant sentencing factors set
forth in 18 U.S.C. § 3553(a) and explain the prescribed sentence. Id. at 247; see United
States v. Charles, 467 F.3d 828, 832 (3d Cir. 2006). “We will affirm a procedurally
sound sentence as substantively reasonable unless no reasonable sentencing court would
have imposed the same sentence on that particular defendant for the reasons the district

3

The Magistrate Judge also concluded in his Report and Recommendation that Steele
was competent to plead guilty.
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court provided.” Grober, 624 F.3d at 599 (internal quotation marks and citations
omitted). In general, we also apply a presumption of reasonableness to sentences within
an appropriately-calculated Guidelines range. Rita v. United States, 551 U.S. 338, 346
(2007).
In this case, where neither party moved for a formal departure, the District Court
fully satisfied the Gunter steps by correctly calculating a Guidelines sentencing range of
six to twelve months imprisonment, thoroughly considering the § 3553(a) factors, and
explaining that a sentence of twelve months imprisonment was proper given Steele’s long
history of criminal conduct and the harm it caused. Although the sentence the District
Court ultimately imposed was one day outside of and above the Guidelines sentencing
range, the District Court only amended its original sentence to add the extra day at
Steele’s request. Thus, accounting for the fact that the District Court carefully applied the
§ 3553(a) factors to the facts at issue, we are satisfied that the sentence the District Court
imposed was reasonable. An appeal based on the sentence would be frivolous.
III
For the foregoing reasons, we agree with defense counsel that there are no nonfrivolous issues for appeal in this case. We will grant defense counsel’s motion to
withdraw under Anders and affirm the District Court’s judgment and commitment Order.4

Because we conclude that Steele’s appeal “lacks arguable merit,” L.A.R. 109.2(a) does
not require that we appoint Steele new counsel. United States v. Coleman, 575 F.3d 316,
321 (3d Cir. 2009).
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