Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-19-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4273




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No: 02-4273
                                    ______________

                           UNITED STATES OF AMERICA


                                             v.

                                  DARNELL JONES,

                                            Appellant
                          ______________________________

                       Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                (D.C. No. 99-cr-00348-1)
                              District Judge: Stewart Dalzell


                       Submitted Under Third Circuit LAR 34.1(a)
                                 on November 15, 2004

                   Before: ROTH, SMITH and WEIS, Circuit Judges

                          (Opinion filed: July 19, 2005)


                                       OPINION

ROTH, Circuit Judge:

      Counsel for Darnell Jones has filed a motion to withdraw from the case--citing a

lack of non-frivolous appealable issues. Counsel has submitted a brief pursuant to Anders

                                            1
v. California, 

(1967), in support of his motion. Jones was given a copy of

the motion and corresponding brief with notice that he could file a pro se brief. He chose

not to do so. However, Jones has filed a pro se motion requesting that we appoint him a

new counsel.

       On December 8, 1999, Darnell Jones was found guilty by a federal jury for

conspiracy to commit armed robbery, 18 U.S.C. § 371, attempted bank robbery and armed

bank robbery in violation of 18 U.S.C. § 2113(d), and carrying and using a firearm during

the crime of violence in violation of 18 U.S.C. § 924(c)(1). Subsequently, Jones admitted

his guilt regarding these offenses and sought to cooperate with the government by

disclosing information about various criminal undertakings of which he had knowledge.

The District Court found that Jones’s cooperation subjected him and his family to

substantial danger. The presentence report established the maximum sentencing guideline

range at between 370 and 387 months imprisonment. The District Court granted a

significant downward departure and sentenced Jones to 240 months imprisonment on

November 15, 2002. Jones filed a timely notice of appeal of the sentence.

       We adhere to a twofold inquiry when analyzing Anders briefs. United States v.

Youla, 

, 300 (3d Cir. 2001). This inquiry consists of the following: “(1)

whether counsel adequately fulfilled the rule’s requirements; and (2) whether an

independent review of the record presents any nonfrivolous issues.” 

attorney submits an Anders brief, his or her duties are (1) to demonstrate to the court that



                                              2
he or she has thoroughly examined the record for appealable issues, and (2) to

demonstrate that the issues are frivolous. 

to his or her duties “[c]ounsel

need not raise and reject every possible claim.” 

only to satisfy the

“conscientious examination” standard set forth by the Supreme Court in Anders. 

conclude that counsel’s Anders brief is flawed, we have performed our own

review of the record.

       Counsel points to two potential appealable issues and cites the relevant case law.

He identifies the following issues: (1) whether Jones waived his right to appeal any

errors made during the trial because of his cooperation with the government following the

trial, and (2) whether, in imposing sentence, the District Court failed to adequately

compensate Jones for his substantial cooperation with the government. As to the first

issue, counsel made an erroneous assumption that Jones, by cooperating with the

government after his guilty verdict, somehow automatically waived his right to appeal any

potential errors committed during the trial. The government conceded to counsel’s error

in its brief. However, after our review of the record, we agree with the government’s

contention that counsel correctly states that there are no non-frivolous issues from the

trial for review, even though counsel’s reasoning may be incorrect. In fact, after the trial

Jones admitted the jury’s guilty verdict was correct. No trial errors were identified and no

post trial motions were filed. The frivolousness of this potential issue is patent. See

United States v. Marvin, 

, 781 (3d Cir. 2000) (noting that Anders briefs that



                                              3
contain patently frivolous issues will not be rejected, even if counsel performed his or her

duties inadequately).

       Regarding the second issue – the sentence imposed – at the time of sentencing, the

District Court did not have the benefit of the Supreme Court decision in United States v.

Booker,    U.S.         , 

(2005). Following Booker, we held in United States

v. Davis, 

(3d Cir. 2005) (en banc), that a defendant’s substantial rights may

have been affected where the District Court erred by treating the Guidelines as mandatory

rather than advisory. 

Such an error in the case before us may have affected

the point from which the District Court departed downward.

       Although Jones appears to have waived his right to challenge his sentence under

Booker when he failed to respond to an order of this Court, dated February 16, 2005,

which requested the parties to submit statements on the applicability of Booker, we are

concerned about the adequacy of the Anders review done by Jones’s counsel.

Accordingly, we will vacate the sentence and remand for resentencing.

                                       CONCLUSION

       For the reasons stated, we will affirm the judgment of conviction and we will

vacate the judgment of sentence and remand this case for resentencing.