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


4-21-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3572




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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                    No. 04-3572
                                    __________

                          UNITED STATES OF AMERICA

                                           v.

                              CHARLES F. MURRAY,

                                                     Appellant

                                     __________

                   On Appeal from the United States District Court
                            for the District of New Jersey
                          (D.C. Criminal No. 04-cr-00207)
                     District Judge: Honorable Joseph E. Irenas
                                     __________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 6, 2006

                    Before: RENDELL, AMBRO, Circuit Judges,
                           and SHAPIRO*, District Judge

                                (Filed April 21, 2006)

                                     __________

                             OPINION OF THE COURT
                                   __________

___________________
   * Honorable Norma L. Shapiro, Senior Judge of the United States District Court for
      the Eastern District of Pennsylvania, sitting by designation.
RENDELL, Circuit Judge.

       On or about January 30, 2004, Charles Murray pled guilty to a criminal

information of two counts of traveling in interstate commerce to engage in sexual acts

with a minor, in violation of 18 U.S.C. § 2423(b). In his plea agreement, Murray waived

his right to file any appeal, collateral attack, or any other writ or motion after sentencing

if the sentencing court determined Murray’s offense level to be equal to or less than 27

under the Sentencing Guidelines. After extensively questioning Murray, the District

Court found that Murray understood the terms of the plea agreement and accepted its

terms knowingly, intelligently and voluntarily, and without any threats, promises or

coercion.

       At sentencing, the District Court determined Murray’s base offense level to be 27,

with a criminal history category of II – resulting in a sentencing range of 78 to 97 months

imprisonment under the Sentencing Guidelines. The District Court sentenced Murray to

83 months imprisonment and, in light of the Supreme Court’s decision in Blakely v.

Washington, 

(2004), stated that it would impose the same sentence even if

the Sentencing Guidelines were not mandatory. Murray instructed his counsel to file an

appeal – despite the waiver of appellate rights contained in the plea agreement – and

counsel filed a Notice of Appeal on August 31, 2004.1 Counsel for Murray subsequently


  1
   After counsel filed the Notice of Appeal, but before submitting the briefs presently
before us, the Supreme Court held that the Sentencing Guidelines are only advisory and
that facts relevant to sentencing – other than prior convictions – must be determined by a

                                               2
filed a brief pursuant to Anders v. California, 

(1967), stating that after a

conscientious examination of the record, counsel could not raise any issue of arguable

merit on appeal. Thereafter, the defendant filed a pro se brief and the government filed a

response brief.

       Third Circuit Local Appellate Rule 109.2(a) follows the guidelines set forth in

Anders, providing that counsel may submit a motion to withdraw and an Anders brief

where counsel “is persuaded that the appeal presents no issue of even arguable merit.”

When counsel submits an Anders brief, we ask “(1) whether counsel adequately fulfilled

[Rule 109.2(a)’s] requirements; and (2) whether an independent review of the record

presents any nonfrivolous issues.” 2 United States v. Youla, 

, 300 (3d Cir.

2001); United States v. Marvin, 

, 780-81 (3d Cir. 2000) (adopting United

States v. Tabb, 

(7th Cir. 1991), wherein the court stated that in an

Anders situation counsel must (1) satisfy to the court that he or she has thoroughly

scoured the record in search of appealable issues; and (2) explain why any such issues are

frivolous). Furthermore, while “counsel need not raise and reject every possible claim . . .

he or she must meet the ‘conscientious examination’ standard set forth in Anders.” 

. Here, after a conscientious examination of the record, counsel correctly

asserted in his Anders brief that Murray knowingly, intelligently and voluntarily waived


jury or admitted by defendant. United States v. Booker, 

(2005)
  2
   Third Circuit Local Appellate Rule 109.2(a) requires the government to file a response
brief and allows appellant to submit a pro se response brief.

                                              3
his appellate rights in his plea agreement. In his pro se brief, Murray does not challenge

his waiver on this basis. Additionally, counsel explained that the District Court properly

sentenced Murray, and that the Supreme Court’s subsequent decisions in Blakely and

United States v. Booker, 

(2005), do not invalidate Murray’s plea agreement

and waiver of appellate rights.

       We are satisfied that counsel has fulfilled both his Anders obligations and the Rule

109.2(a) requirements. We find that the issues defendant asserts on appeal lack legal

merit. Therefore, we grant counsel’s request to withdraw and dismiss the appeal.

       Murray’s waiver of appellate rights precludes him from bringing this appeal. We

have held that “waivers of appeals, if entered into knowingly and voluntarily, are valid,

unless they work a miscarriage of justice.” United States v. Khattak, 

, 563

(3d Cir. 2001). Murray entered into his plea agreement knowingly, voluntarily and

intelligently. He had competent counsel and was aware of the nature of the charges

against him. There is no indication that Murray was incompetent. At sentencing, the

District Court thoroughly questioned Murray about the crimes detailed in the plea

agreement and Murray admitted that he had committed all of the offenses. Murray

informed the District Court that he agreed with all of the stipulations in his plea

agreement and understood that he was waiving his rights to appeal.3 Accordingly, he


  3
   Even if Murray’s appellate waiver were invalid, Murray’s challenge to the District
Court’s imposition of a sentencing enhancement pursuant to § 2A3.2(b)(2)(B) of the
Sentencing Guidelines would be meritless. Murray stipulated to this enhancement in his

                                              4
waived this right and his appeal will be dismissed.

       In addition, we note that Murray would not have been entitled to resentencing

under Booker. In United States v. Hill, 

, 426 (3d Cir. 2005), we held that

where the District Court clearly indicates that an alternative sentence would be identical

to the sentence imposed under the Guidelines, any error that may attach to a defendant’s

sentence under Booker is harmless. Here, the District Court clarified that it would have

imposed the same sentence assuming the Guidelines were only advisory. Therefore,

Murray could not raise a Booker challenge on appeal.

       For the foregoing reasons, we will dismiss the appeal and grant defense counsel’s

motion to withdraw.

_______________________




plea agreement. In Blakely, the Supreme Court stated that “[w]hen a defendant pleads
guilty, the State is free to seek judicial sentence enhancements so long as the defendant
either stipulates to the relevant facts or consents to judicial 

.
We have repeatedly held that a defendant may not “renege on his agreement” by
challenging on appeal an enhancement that defendant stipulated to in his plea agreement.
United States v. Cianci, 

, 110 (3d Cir. 1998); see also United States v.
Melendez, 

(3d Cir. 1995) (barring defendant from disputing stipulation
regarding sentencing range). Here, Murray stipulated to the “undue influence”
enhancement in his plea agreement; therefore, no judicial factfinding was necessary to
warrant the sentencing enhancement.

                                              5