Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-14-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3655




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-3655



                           UNITED STATES OF AMERICA

                                           v.

                            NATHAN CHARLES GRIGGS,
                                              Appellant



                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             D.C. Criminal No. 04-cr-0052
                          (Honorable William W. Caldwell)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 27, 2006

       Before: SCIRICA, Chief Judge, NYGAARD and ALARCÓN*, Circuit Judges

                                 (Filed: July 14, 2006)



                              OPINION OF THE COURT




   *
    The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
SCIRICA, Chief Judge.

       Nathan Charles Griggs appeals his criminal sentence and conviction. Griggs’s

attorney filed a motion to withdraw as court-appointed counsel in this case and filed a

brief under Anders v. California, 

(1967). Griggs was provided notice of his

attorney’s desire to withdraw and was informed that he could file a pro se brief. Griggs

filed a brief with this Court on September 26, 2005. For the reasons stated, we will deny

defense counsel’s motion to withdraw, affirm the judgment of conviction, vacate the

judgment of sentence, and remand for resentencing.

                                             I.

       On February 11, 2004, Griggs was charged with four counts of bank robbery, all in

violation of 18 U.S.C. § 2113(a). The indictment alleged Griggs committed four separate

robberies in a span of just under a month. Griggs pled guilty to all counts. In accordance

with the plea agreement, Griggs reserved the right to contest the type of weapon used

during the course of the fourth robbery. The pre-sentence report placed Griggs in a

sentencing guidelines range of 151–188 months. This included a recommended six-level

upward adjustment under U.S.S.G. § 2B3.1(b)(2)(B) for having “otherwise used” a

firearm during the fourth charged robbery. Griggs objected to the § 2B3.1(b)(2)(B) gun-

use enhancement, claiming he used a crossbow during the fourth robbery, not a firearm.1


   1
    The sentencing guidelines call for a six-level enhancement if a “firearm” was
“otherwise used” in a robbery, U.S.S.G. § 2B3.1(b)(2)(B), but only a four-level
enhancement if some other “dangerous weapon” was “otherwise used,” U.S.S.G. §
                                                                             (continued...)

                                             2
       On September 8, 2004 — after Blakely v. Washington, 

(2004), but

before United States v. Booker, 

(2005) — the District Court sentenced

Griggs to 169 months’ imprisonment. The District Court expressly declined to consider

the federal sentencing guidelines in making its sentencing decision, finding the guidelines

unconstitutional in their entirety under Blakely. Nevertheless, the court heard evidence at

the sentencing hearing on the gun-use enhancement recommended in the PSR. The court

found by a preponderance of the evidence that Griggs used a gun during the fourth

robbery. The court noted Griggs’s sentence reflected both the trauma his actions caused

to his victims and his extensive criminal history.

                                              II.

       Third Circuit Local Appellate Rule 109.2(a) provides that “[w]here, upon review

of the district court record, trial counsel is persuaded that the appeal presents no issue of

even arguable merit, trial counsel may file a motion to withdraw and supporting brief”

under Anders. In reviewing an Anders brief, we must consider “(1) whether counsel

adequately fulfilled the rule’s requirements; and (2) whether an independent review of the

record presents any nonfrivolous issues.” United States v. Youla, 

, 300 (3d

Cir. 2001).

       In submitting an Anders brief, counsel must “satisfy the court that counsel has

thoroughly examined the record in search of appealable issues,” and “to explain why the


   1
   (...continued)
2B3.1(b)(2)(D).

                                              3
issues are frivolous.” 

not “raise and reject every possible claim,” but

his or her brief must demonstrate “conscientious examination.” 

reveals

counsel has thoroughly considered all plausible bases for appeal. Counsel examined at

length the District Court’s finding supporting the gun-use enhancement, as well as the

case law supporting this finding. Counsel also anticipated the Supreme Court’s Booker

opinion (although not its exact holding), suggesting an appealable issue might arise

should the Supreme Court apply Blakely to the federal sentencing guidelines.

Accordingly, we find counsel has submitted an adequate Anders brief.

       As noted, Griggs also submitted a brief. He raises several issues, including (1) an

ineffective assistance of counsel claim, (2) challenges to the District Court’s gun-use

finding, (3) a claim that the District Court improperly applied U.S.S.G. § 2B3.1(b)(2)(B)

to enhance his sentence by six levels, and (4) a Booker challenge to his sentence.2 We

have conducted an independent review of the record, see 

, and

conclude Griggs raises a non-frivolous issue through his Booker challenge, but all other

issues raised are without merit.

       We do not address Griggs’s assertion of ineffective assistance of counsel on direct

review. United States v. Thornton, 

, 271–72 (3d Cir. 2003). Such claims are

“best decided in the first instance in a collateral action.” 

offers several other challenges to his conviction and sentence, but none are of
arguable merit.

                                               4
       With regard to the gun-use finding, the court correctly applied a preponderance of

the evidence standard to determine whether Griggs used a gun, rather than a crossbow,

during the fourth robbery. See United States v. Grier, 

, 570 (3d Cir. 2006).

The court’s gun-use finding was not clear error. The bank teller involved in the fourth

robbery testified unequivocally that Griggs pointed a gun at her during the robbery. The

court was entitled to credit this testimony over Griggs’s.

       Griggs also contends that, even if he used a gun, his sentence should only have

been enhanced five levels for having “brandished” the gun under U.S.S.G. §

2B3.1(b)(2)(C), not six levels for having “otherwise used” the gun under U.S.S.G. §

2B3.1(b)(2)(B). There was no error here, much less plain error. The bank teller testified

Griggs took out a gun, pointed it at her, told her to fill a bag with money, and warned her

not to “push his buttons.” (App. 26a–27a.) We have held that “specifically leveling a

cocked firearm at the head or body of a bank teller or customer, ordering them to move or

be quiet according to one’s direction, is a cessation of ‘brandishing’ and the

commencement of ‘otherwise used.’” United States v. Orr, 

, 145 (3d Cir.

2002). Griggs’s conduct during the fourth robbery falls squarely within this definition of

“otherwise used.”

       After counsel filed his Anders brief, the Supreme Court decided United States v.

Booker, holding judicial fact-finding under the mandatory federal sentencing guidelines

was unconstitutional and making those guidelines 

–46. The

Court directed district courts to consider the 18 U.S.C. § 3553(a) factors in imposing

                                             5
sentence, including the properly calculated guidelines range itself, 18 U.S.C. §

3553(a)(4). 

; see United States v. Cooper, 

, 327, 330

(3d Cir. 2006) (explaining sentencing procedures after Booker). As noted, the District

Court here expressly declined to consider the guidelines. Nor does the record reveal that

the court considered the remaining § 3553(a) factors. This was error under Booker. See

–64.

       On May 8, 2006, we directed defense counsel to inform this Court if Griggs

requests resentencing in light of Booker and Cooper.3 Counsel responded on June 21,

2006, advising us of Griggs’s wish to be resentenced. Accordingly, we will vacate his

sentence and remand for resentencing. See United States v. Davis, 

, 166 (3d

Cir. 2005) (vacating and remanding a sentence under Booker “for consideration of the

appropriate sentence by the District Court in the first instance”).

       This result is not foreclosed by our opinion in United States v. Hill, 

,

426 (3d Cir. 2005). In Hill, we held a district court’s error in sentencing a defendant

under the mandatory guidelines was harmless when the court determined an alternative

sentence under an indeterminate sentencing scheme would be identical to the sentence

imposed under the mandatory guidelines. 

district court gave the

defendant the same sentence under both schemes, we could infer the court would have


   3
    In his September 26, 2005 pro se brief, Griggs contended that, under Booker, he is
entitled to have a jury determine whether he “otherwise used” a firearm. But Booker calls
for sentencing under the advisory guidelines, not for a jury determination of sentencing
facts.

                                              6
done the same under the post-Booker sentencing scheme. We don’t believe a similar

inference can be made here. Unlike in Hill, where the district court not only considered

the guidelines, but imposed an alternative sentence under them, the District Court in this

case expressly declined to take the guidelines into account. The court neither calculated

Griggs’s guidelines range nor considered the range recommended by the PSR.

Accordingly, any determination of the District Court’s intent under a post-Booker

sentencing scheme would be in part speculative. Remand is, therefore, appropriate.

       Because this case is being remanded for resentencing, we will deny counsel’s

motion to withdraw.

                                            III.

       We will affirm the judgment of conviction, vacate the judgment of sentence, and

remand this case for resentencing under Booker. Defense counsel’s motion to withdraw

is denied.




                                             7