USA v. Gregory Westberry

Filing

NOT PRECEDENTIAL OPINION Coram: CHAGARES, GREENAWAY JR. and VANASKIE, Circuit Judges. Total Pages: 8. Judge: CHAGARES Authoring. *We will grant counsel's request to withdraw and affirm the District Court's judgment.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-3106
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UNITED STATES OF AMERICA
v.
GREGORY WESTBERRY,
Appellant
_____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-11-cr-00355-001)
District Judge: Honorable Renee Marie Bumb
_____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 5, 2017
Before: CHAGARES, GREENAWAY, JR., and VANASKIE, Circuit Judges.
(Filed: August 9, 2017)
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OPINION *
____________

*

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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CHAGARES, Circuit Judge.
Gregory Westberry was sentenced to 12 months of imprisonment and two years of
supervised release after pleading guilty to violating the terms of his supervised release
from a prior conviction. On appeal, his counsel moved to withdraw pursuant to Third
Circuit Local Appellate Rule 109.2 and Anders v. California, 386 U.S. 738 (1967). We
will grant permission for counsel to withdraw and affirm the District Court’s judgment.
I.
While Westberry was on supervised release for a prior conviction, 1 the United
States Probation Office filed a Petition for Warrant or Summons for Offender under
Supervision, requesting that the District Court revoke Westberry’s supervised release
based on three alleged violations. The first and third charged violations were based on
Westberry’s arrests dated January 6 and March 8, 2016. The second was for Westberry’s
use of narcotics, based on a drug test on February 17, 2016 that tested positive for heroin.
Westberry appeared before the District Court on June 27, 2016. Prior to the
hearing, Westberry and the Government had discussed an agreement where Westberry
would plead guilty to the second violation charge and the Government would recommend
12 months of imprisonment with no supervised release and dismiss the first and third
violation charges. The Probation Office, however, took the position that Westberry’s
sentence should include a term of supervised release. Westberry’s attorney advised the

1

On June 20, 2012, Westberry was sentenced to sixty-four months of imprisonment and
three years of supervised release after pleading guilty to violating 28 U.S.C. § 922(g)(1),
Possession of a Firearm by a Convicted Felon.
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court that the defendant “understands it will then be up to your Honor to decide how to
resolve that.” App. 28.
Westberry’s attorney then answered in the affirmative to a series of questions
posed by the court regarding whether Westberry was apprised of certain issues. Those
issues included the consequences of pleading guilty, the waiver of rights, the sentencing
exposure, the advisory nature of the federal Sentencing Guidelines, and that,
notwithstanding the Government’s recommendation, it was “entirely up to the Court as to
the sentence that’s to be imposed.” App. 28-31. The court conducted a colloquy directly
with Westberry, during which he confirmed that he understood the charges against him,
the rights that he would give up by pleading guilty, and the sentencing exposure; that he
was pleading guilty voluntarily; and that he was satisfied with his attorney. Westberry
pled guilty to the second violation charge and allocuted as to the nature of the violation
(using heroin while on supervised release while at Delaney Hall, a halfway house).
With the consent of the parties, the District Court proceeded to sentencing.
Westberry’s attorney explained to the court the basis for the 12-month sentence jointly
recommended by the Government and the defense. He noted that although the original
basis for the second violation charge was a sole “dirty” urine sample, the proposed
sentence was at the top of the advisory Sentencing Guidelines of seven to 13 months. He
explained:
We’ve agreed to it for a couple of reasons. Number one, we understand
. . . other charges that [will] have been dismissed as to Mr. Westberry. And
number two, in the hope that the Court will consider the fact that in
imposing what we consider to be a harsh sentence for a one dirty urine
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violation, the Court will dispense with the requirement of further
supervised release, which is also part of the joint recommendation.
App. 43. The Government added that “although this is Mr. Westberry’s first violation[,]
it is important to note that he was only on supervised release for approximately eight
weeks before his first arrest that forms the basis for violation number one.” App. 48.
The Government also noted that Westberry’s prior sentence was the result of a “very
significant” downward departure and that Westberry admitted to using heroin while
residing at a halfway house “specifically for inmates who have substance abuse issues.”
App. 49.
The District Court concluded that, after considering the facts of the case and the
18 U.S.C. § 3553(a) factors, a 12-month term of imprisonment and a two-year term of
supervised release was appropriate. The court noted as relevant considerations
Westberry’s extensive criminal history and drug use, the short period of time between the
start of the previous term of supervised release and the alleged violation, and the fact that
he used heroin at a halfway house. The court concluded:
I think that by not continuing Mr. Westberry on supervised release I don’t
think it promotes respect for the law, number one. I think that someone
who -- he should have to prove himself that he can do this. That’s what
supervision is all about. He should be deterred. And if he’s kept on
supervised release, when he gets out he’ll be deterred because he’ll know if
he violates again he’ll be back in the same boat, he’ll be back facing jail
time. And that will serve as a very valuable deterrent for him. The public
will be protected by the sentence that I’m about to impose.
App. 54. While the sentence was being announced, Westberry attempted to request that
the court sentence him to 24 months of imprisonment instead of 12 months, and no
supervised release. The court declined.
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Westberry timely appealed. His attorney requests to withdraw because there is no
viable basis for appeal.
II. 2
Under Anders v. California, court-appointed counsel may — after finding any
appeal “to be wholly frivolous” after careful examination of the record — file a brief
“advis[ing] the Court and request[ing] permission to withdraw” and identifying “anything
in the record that might arguably support the appeal.” 386 U.S. at 744. In evaluating a
motion to withdraw, the Court’s inquiry is twofold: “(1) whether counsel adequately
fulfilled the [Court’s] rule’s requirements” under Third Circuit Local Appellate Rule
109.2(a); 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).
The withdrawing counsel’s brief must “satisfy the court that counsel has
thoroughly examined the record in search of appealable issues” and “explain why the
issues are frivolous.” Id. An appeal is frivolous if “the appeal lacks any basis in law or
fact.” McCoy v. Court of Appeals of Wis., 486 U.S. 429, 438 n.10 (1988). If the Anders
brief “appears to be adequate on its face, the proper course is for the appellate court to be
guided in reviewing the record by the Anders brief itself. A complete scouring of the
record is unnecessary.” Youla, 241 F.3d at 300-01.
We conclude that counsel has fulfilled the requirements of Anders by making a
thorough examination of the record. See id. at 299. Westberry’s counsel submitted a

2

The District Court had jurisdiction under 18 U.S.C. § 3231 and 18 U.S.C. § 3583(e).
This Court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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brief that reviewed the record and identified potentially appealable issues, concluding that
none are legitimate. This Court has likewise failed to identify any non-frivolous issues
after an independent review of the record. Westberry did not file a pro se brief in
response.
We first examine Westberry’s guilty plea. The District Court followed all the
steps required by Fed. R. Crim. P. 11: placing Westberry under oath, addressing him
personally, ensuring through questioning that Westberry was competent and that he was
entering the plea of his own free will, advising him of his trial rights, and warning him
that entry of a guilty plea would lead to waiver of a hearing before the judge and other
rights. The District Court also addressed the nature of the offense, the potential penalties,
and the advisory Sentencing Guidelines. The District Court specifically advised
Westberry of the fact that the court has discretion to impose a different sentence from the
plea agreement. Westberry’s attorney also acknowledged that the ability to impose a
different sentence — in this case, a term of supervised release — was within the
discretion of the court. Finally, the court addressed Westberry personally and Westberry
confirmed the factual basis for the violation of supervised release. See United States v.
Stewart, 977 F.2d 81, 84 (3d Cir. 1992) (“A transcript showing full compliance with the
customary inquiries and admonitions furnishes strong, although not necessarily
conclusive, evidence that the accused entered his plea without coercion and with an
appreciation of its consequences.”).
Next, we examine Westberry’s sentence. We have set forth a “three-step
framework” for district courts to follow when sentencing a defendant. See United States
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v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc). First, a district court must
calculate a Guidelines sentence as it would have been prior to United States v. Booker,
543 U.S. 220 (2005). Id. Second, the district court must formally rule on any motions
for departure and state what effect any departure would have on the Guidelines
calculation. Id. Third, the district court must exercise discretion by considering relevant
18 U.S.C. § 3553(a) factors regardless of whether it varies from the Guidelines sentence.
Id. Here, the District Court calculated a Guidelines sentence of 7 to 13 months of
imprisonment. There were no motions for departure. The District Court considered the
relevant § 3553(a) factors in determining its sentence, including Westberry’s prior
experience with the criminal justice system, the nature of the violation at issue, and
deterrence. Accordingly, this sentence was procedurally reasonable.
Any challenge to the substantive reasonableness of the sentence would also be
meritless. Because the record reflects “rational and meaningful consideration of the
factors enumerated in § 3553(a),” United States v. Grier, 475 F.3d 556, 571 (3d Cir.
2007) (en banc), we only overturn a sentence as unreasonable when “no reasonable
sentencing court would have imposed the same sentence on that particular defendant for
the reasons the district court provided,” United States v. Tomko, 562 F.3d 558, 56 (3d
Cir. 2009) (en banc). Here, the decision of the District Court to impose a sentence of 12
months — which was within the Guidelines range and was the term of imprisonment
agreed upon by the defendant and the Government — and a two-year term of supervised
release was not unreasonable under the circumstances.

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III.
For the foregoing reasons, we will grant counsel’s request to withdraw and affirm
the District Court’s judgment.

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