Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-18-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1514




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"USA v. Kinnard" (2007). 2007 Decisions. Paper 1765.
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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-1514


                          UNITED STATES OF AMERICA,

                                             Appellee,

                                             v.

                                   ERIC KINNARD,

                                             Appellant.



            On Appeal from the Sentence of the United States District Court
                       for the Middle District of Pennsylvania
                   and Petition to Withdraw from Representation
                                (D.C. No. 05-cr-0337)
                  District Judge: Honorable Christopher C. Conner


                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 8, 2007

 Before: SLOVITER, RENDELL, Circuit Judges, and IRENAS,* Senior District Judge.

                               (Filed: January 18, 2007 )




   *
   Honorable Joseph E. Irenas, Senior United States District Judge for the District of
New Jersey, sitting by designation.
                                         OPINION



IRENAS, Senior United States District Judge.

       Eric Kinnard appeals his sentence of 105 months imposed after he pleaded guilty

to distribution and possession with intent to distribute heroine in violation of 21 U.S.C.

§ 841(a)(1). Kinnard’s counsel has filed a brief pursuant to Anders v. California, 

(1967), along with a Petition to Withdraw from Representation of the

Appellant. Kinnard was notified of his right to submit a pro se brief in support of his

appeal but has not done so. For the reasons set forth below, we will affirm the

sentencing order and grant counsel’s request to withdraw.



                                             I.

       Pursuant to a written plea agreement with the United States, Kinnard pleaded

guilty to one count of distribution and possession with intent to distribute heroine on

October 28, 2005. At the sentencing hearing, Kinnard moved for a downward departure,

asserting that his criminal history category of VI overstated the seriousness of his

previous offenses. The United States also moved for a downward departure based on

Kinnard’s substantial assistance in the investigation and prosecution of other offenders.

       The district court denied Kinnard’s motion and granted the United States’ motion.



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The court concluded that Kinnard’s criminal history category did not substantially

overrepresent the seriousness of his criminal history or the likelihood that he will commit

other crimes. Specifically, the court noted that Kinnard had nine convictions since 1993

and three prior convictions for crimes of violence.

       With respect to the United States’ motion, the court noted that Kinnard cooperated

“very well” with law enforcement. The court granted the motion, departing downward

five levels, even though the United States sought only a three level departure. Taking

into account the departure, the court determined that Kinnard’s offense level was 24, his

criminal history was 6, and the guideline range was 100 to 125 months. The court then

imposed a sentence of 105 months. Kinnard timely filed a notice of appeal.




                                            II.

       The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise

jurisdiction over the sentencing order pursuant to 28 U.S.C. § 1291 and over the final

sentence pursuant to 18 U.S.C. § 3742(a).

       Pursuant to Third Circuit Local Appellate Rule 109.2(a), if trial counsel reviews

the district court record and “is persuaded that the appeal presents no issue of even

arguable merit, trial counsel may file a motion to withdraw and supporting [Anders]

brief.” Third Circuit L.A.R. 109.2(a). In considering counsel’s submission, we must

examine: (1) “whether counsel fulfilled the rule’s requirements;” and (2) “whether an


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independent review of the record presents any nonfrivolous issues.” United States v.

Youla, 

, 300 (3d Cir. 2001). To satisfy the Anders requirements,

Appellant’s counsel must “satisfy the court that he or she has thoroughly scoured the

record in search of appealable issues” and “explain why the issues are frivolous.” United

States v. Marvin, 

, 780 (3d Cir. 2000).

       First, we find that Appellant’s counsel’s brief, along with the Petition to Withdraw

from Representation, adequately demonstrate that counsel has reviewed the record for

appealable issues and explained why those issues are frivolous. Second, after our own

independent analysis of the record, we agree with counsel’s analysis that this appeal

presents no non-frivolous issues.

       We see two possible issues. First, Kinnard might challenge the district court’s

refusal to downwardly depart on his criminal history category. However, even before

United States v. Booker, 

(2005), “we declined to review discretionary

decisions to deny departures,” United States v. Cooper, 

, 332 (3d Cir.

2006), and Booker did not alter that precedent. 

.

       Second, Kinnard might challenge his sentence as unreasonable under Booker.

The sentencing transcript makes clear, however, that the district court addressed the

factors found in 18 U.S.C. § 3553(a) (see App. at p. 21), and imposed a sentence that was

within the applicable guideline range. See 

(“it is less likely that

a within-guidelines sentence, as opposed to an outside-guidelines sentence, will be


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unreasonable.”). Indeed, Kinnard’s sentence was at the lower end of the applicable

guideline range and significantly lighter than the sentence recommended by the

government.

      Accordingly, the sentence will be affirmed and counsel’s Petition granted.




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