Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-8-2004

USA v. Jones
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4598




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                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                    No. 02-4598


                         UNITED STATES OF AMERICA

                                         v.

                                DONALD JONES,
                              a/k/a HAFIZ SHABUR

                                   Donald Jones,
                                                Appellant


           APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                          D.C. Crim. No. 02-cr-00244-1
                District Judge: The Honorable Berle M. Schiller


                    Submitted Under Third Circuit LAR 34.1(a)
                               September 30, 2004


             Before: ROTH, BARRY, and CHERTOFF, Circuit Judges


                         (Opinion Filed: November 8, 2004)


                                     OPINION


BARRY, Circuit Judge

     Donald Jones was charged with being a convicted felon in possession of a firearm
in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He pled guilty, and was sentenced to

180 months imprisonment and five years of supervised release.

       Jones, pro se, appealed the judgment of sentence, and trial counsel was appointed

to represent Jones on appeal. After reviewing the record, counsel filed a brief pursuant to

Anders v. California, 

(1967), requesting permission to withdraw because he

was unable to discern any non-frivolous issues for review. Jones was subsequently

provided notice of his counsel’s desire to withdraw. He has not filed a pro se brief.

       The District Court had jurisdiction under 18 U.S.C. § 3231, and we have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We will grant counsel’s

motion to withdraw and will affirm the judgment of sentence.

                                              I.

       When counsel submits an Anders brief, we must perform a two part inquiry. First,

we must determine whether counsel has satisfied L.A.R. 109.2(a). United States v. Youla,

, 300 (3d Cir. 2001). To discharge his duty pursuant to L.A.R. 109.2(a),

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.” 

is not required to raise and reject every possible claim, he still must

conscientiously examine the record. 

must be satisfied that our independent review of the record does not

reveal any non-frivolous issues. 

Anders brief appears adequate on its face, “the



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proper course ‘is for the appellate court to be guided in reviewing the record by the

Anders brief itself.’” 

United States v. Wagner, 

, 553 (7th

Cir. 1996)). We conclude that the Anders brief is adequate and, thus, it guides our

independent review of the record. See 

.

                                             II.

       As required by Anders, Jones’ counsel has highlighted portions of the record that

could putatively support an appeal. Counsel has identified two possible issues: (1) the

District Court’s refusal to continue the sentencing hearing in order to clarify Jones’

criminal record; and (2) the District Court’s decision to apply 18 U.S.C. § 924(e). After

reviewing the record, we agree with counsel that these issues are frivolous.

       In his Anders brief, counsel explained that, prior to the sentencing hearing, he had

moved for a continuance in order to determine whether Jones had two or three felony

drug convictions. At the sentencing hearing, however, it became apparent that a

continuance was not necessary because counsel had been provided with certified copies

of Jones’ convictions, counsel and Jones had reviewed those records and stipulated to

them, and the Assistant U.S. Attorney answered to counsel’s satisfaction any questions

concerning those records. Any need to delay the sentencing was obviated, and the

District Court did not abuse its discretion when it denied the request for a continuance

that counsel had previously made.

       Second, the District Court correctly applied 18 U.S.C. § 924(e). While Jones



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claimed that he only recalled two prior felony drug convictions, certified copies of three

such convictions were produced.

       For the reasons stated above, we will grant counsel’s request to withdraw and will

affirm the judgment of sentence.




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