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


7-21-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2091




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                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEAL
                           FOR THE THIRD CIRCUIT


                                     No. 03-2091


                          UNITED STATES OF AMERICA

                                          v.

                               ANTHONY BRYANT,
                               a/k/a NADIR BRYANT

                                   Anthony Bryant,

                                               Appellant


                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                          (D.C. Criminal No. 01-cr-00624)
                      District Judge: Hon. R. Barclay Surrick


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   May 27, 2004

BEFORE: RENDELL and COW EN, Circuit Judges and SCHW ARZER*, District Judge

                                 (Filed July 21, 2004)


                                      OPINION




*Honorable William W Schwarzer, Senior United States District Judge for the Northern
District of California, sitting by designation.
COWEN, Circuit Judge

       Anthony Bryant appeals his conviction and sentence following a jury trial in which

he was found guilty on one count of being a felon in possession of a firearm, in violation

of 18 U.S.C. §§ 922(g) and 924(e). Bryant’s counsel has submitted a brief pursuant to

Anders v. California, 

(1967), certifying the absence of any non-frivolous

issues on appeal. We have jurisdiction under 28 U.S.C. § 1291. Because we find that

counsel has adequately fulfilled the requirements of Third Circuit Local Appellate Rule

109.2(a) and that an independent review of the record reveals no non-frivolous issues, we

will dismiss Bryant’s appeal and grant defense counsel’s separately filed motion to

withdraw.

       On May 31, 2001, Bryant was observed by four non-uniformed Philadelphia police

officers engaging another man in what one of the officers described as a drug transaction

involving the controlled substance codeine.1 During the transaction, the officers observed

Bryant displaying a handgun to the other man. Three of the officers exited the unmarked

police vehicle in which the four had been traveling and approached Bryant on foot, while

the remaining officer approached Bryant in the vehicle from the opposite direction.

Bryant walked over to the car, at which point the officer in the vehicle drew his weapon

and tried to effectuate an arrest. Bryant fled, but was intercepted by two of the three other

officers on foot. Upon searching Bryant, the officers discovered four vials of purple

   1
    The officers observed Bryant displaying a clear vial containing purple liquid, which
one officer suspected was cough syrup containing codeine.

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liquid and a handgun.

       A grand jury in the Eastern District of Pennsylvania returned an indictment

charging Bryant with one count of being a felon in possession of a firearm, in violation of

18 U.S.C. §§ 922(g) and 924(e). The indictment gave notice pursuant to 18 U.S.C. §

924(e) that Bryant had been convicted of three previous state felonies involving five

separate robberies. Bryant moved unsuccessfully to suppress the physical evidence of the

handgun, and elected to go to trial. After a three-day trial commencing on June 17, 2002,

the jury returned a guilty verdict on the single count in the indictment. The District Court

denied Bryant’s post-verdict motions for judgment of acquittal, new trial, and leave to

supplement his post-verdict motions.

       In preparation for Bryant’s sentencing hearing, the United States Probation

Department issued a revised presentence investigation report in which it determined that

Bryant was subject to the enhanced provisions of the armed career criminal guideline set

forth in U.S.S.G. § 4B1.4. The report calculated Bryant’s guideline offense level at 33

with a criminal history in category VI. Bryant objected to these findings and moved for a

downward departure. At the sentencing hearing, Bryant was sentenced to 235 months

imprisonment (the bottom of the applicable guideline range). The District Court denied

Bryant’s objections to the presentence report and motion for downward departure.

       We exercise plenary review in determining, “after a full examination of all the

proceedings,” whether an appeal is wholly frivolous. See 

. Our



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inquiry is twofold. First, we must determine whether counsel’s brief adequately fulfills

the requirements of Third Circuit Local Appellate Rule 109.2(a). United States v. Youla,

, 300 (3d Cir. 2001). Counsel’s obligations in this regard are “to satisfy the

court that counsel has thoroughly examined the record in search of appealable issues” and

“to explain why the issues are frivolous.” 

must satisfy ourselves that an

independent review of the record reveals no non-frivolous issues. 

Anders

brief appears adequate on its face, we confine our review to those parts of the record

identified in the brief, along with any issues raised by an appellant in a pro se brief.2

       We are satisfied that counsel’s Anders brief demonstrates a thorough examination

of the record. Counsel identifies six putative errors by the District Court: (1) its denial of

Bryant’s motion to suppress the physical evidence of the handgun, (2) its failure to permit

the defense to review a report on one of the testifying officers by the Internal Affairs

Division of the Philadelphia Police Department, (3) its refusal to issue a missing witness

instruction to the jury, (4) its refusal to grant Bryant’s motion for a downward departure

based on acceptance of responsibility, (5) its application of enhanced penalties under 18



   2
    Bryant filed a document entitled “Appellant’s Pro Se Submission to Ander’s Brief
with Request for New Counsel.” It raised only claims of ineffective assistance of
counsel, which “are not generally entertained on direct appeal.” United States v. Headley,

, 1083 (3d Cir. 1991). “[T]he proper avenue for pursuing such claims is
through a collateral proceeding in which the factual basis for the claim may be
developed.” 

States v. Theodoropoulo, 

, 598 (3d Cir.
1989)).

                                               4
U.S.C. § 924(e) and U.S.S.G. § 4B1.4, and (6) its refusal to depart downward based upon

the theory that the application of U.S.C. § 924(e) and U.S.S.G. § 4B1.4 would “overstate”

Bryant’s criminal history. Counsel discusses these issues at some length, with detailed

citation to the record, and explains the legal basis for his belief that each issue is

meritless. We agree with counsel’s assessment that this was a relatively straightforward

case, and find that counsel has adequately fulfilled the requirements of Third Circuit

Local Appellate Rule 109.2(a).

       Nor does our own review of the issues raised in counsel’s brief demonstrate that

there are any non-frivolous issues to be raised on appeal. We agree with counsel that the

District Court was acting within its discretion in making the factual findings underlying

its decision to deny Bryant’s motion to suppress and in denying Bryant’s evidentiary

request to inspect the internal affairs report. We also agree that there was no legal basis

for the District Court to deliver the missing witness instruction, and that the District Court

did not err in denying a downward adjustment for acceptance of responsibility where

Bryant elected to proceed to trial and later claimed that he had “never denied” possessing

the handgun. We have reviewed Bryant’s arguments with regard to the applicability of 18

U.S.C. § 924(e) and U.S.S.G. § 4B1.4 (including the pro se arguments Bryant advanced at

sentencing) and agree with counsel that the District Court resolved them correctly.

Finally, we agree that the District Court did not abuse its discretion in refusing to depart

downward and finding that Bryant’s criminal history was not overstated because of his



                                               5
problems with drug addiction.

      We conclude that counsel’s brief satisfies the requirements of Anders, and that an

independent review of the record reveals no non-frivolous issues that could be raised on

appeal. Accordingly, we will dismiss Bryant’s appeal and grant counsel’s separately filed

motion to withdraw.




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