Filed: Mar. 16, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 3-16-2006 USA v. Byrd Precedential or Non-Precedential: Non-Precedential Docket No. 05-1850 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. Byrd" (2006). 2006 Decisions. Paper 1418. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1418 This decision is brought to you for free and open access by the Opinions of the United States C
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 3-16-2006 USA v. Byrd Precedential or Non-Precedential: Non-Precedential Docket No. 05-1850 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. Byrd" (2006). 2006 Decisions. Paper 1418. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1418 This decision is brought to you for free and open access by the Opinions of the United States Co..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-16-2006
USA v. Byrd
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1850
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Byrd" (2006). 2006 Decisions. Paper 1418.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1418
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-1850
UNITED STATES OF AMERICA
v.
WILLIAM BYRD
a/k/a
DANNY JOHNSON
a/k/a
WILLIAM BILAL
a/k/a
BILAAL BYRD
a/k/a
BILLIE BYRD
a/k/a
BILLY BYRD
William Byrd,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action No. 03-cr-00311-1)
District Judge: Honorable Faith S. Hochberg
Submitted Under Third Circuit LAR 34.1(a)
March 7, 2006
Before: RENDELL and AMBRO, Circuit Judges,
and SHAPIRO,* District Judge
(Opinion filed: March 16, 2006)
OPINION
AMBRO, Circuit Judge
On February 4, 2004, William Byrd pled guilty to one count of possession of a
firearm by a convicted felon. As a result, the District Court sentenced him to 115 months
in prison. Byrd appeals his sentence, but his appointed counsel filed an Anders motion to
withdraw as counsel, asserting that all potential grounds for appeal are frivolous.
Because we agree, we affirm Byrd’s sentence and grant counsel’s motion to withdraw.
I.
Under Anders v. California,
386 U.S. 738 (1967), if counsel “finds [a] case to be
wholly frivolous, after a conscientious examination” of the potential grounds for appeal,
s/he should “advise the court and request permission to withdraw.”
Id. at 744. This
request must be accompanied by “a brief referring to anything in the record that might
arguably support the appeal,”
id., “explain[ing] to the court why the issues are frivolous,”
United States v. Marvin,
211 F.3d 778, 781 (3d Cir. 2000), and demonstrating that s/he
has “thoroughly scoured the record in search of appealable issues,”
id. at 780. A copy of
*
Honorable Norma L. Shapiro, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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counsel’s brief must be furnished to the appellant, who must be given time to raise non-
frivolous arguments in a pro se brief.
Anders, 386 U.S. at 744; Third Circuit LAR
109.2(a) (2000). Byrd was notified of his right to file a pro se brief but he has failed to
do so.
We “confine our scrutiny to those portions of the record identified by an adequate
Anders brief . . . [and] those issues raised in Appellant’s pro se brief.” United States v.
Youla,
241 F.3d 296, 301 (3d Cir. 2001). We do not “comb the record . . . for possible
non-frivolous issues that both the lawyer and his client may have overlooked,” as “[our]
duty is merely to determine whether counsel is correct in believing those grounds [raised
are] frivolous.” United States v. Wagner,
103 F.3d 551, 552-53 (7th Cir. 1996). We shall
grant counsel’s Anders motion to withdraw if we believe “that the attorney has provided
the client with a diligent and thorough search of the record for any arguable claim,”
McCoy v. Court of Appeals of Wisconsin,
486 U.S. 429, 442 (1988), and if we conclude
“that the appeal lacks any basis in law or fact,”
id. at 438 n.10.
II.
As we write for the parties, only a brief summary of pertinent facts and procedural
history is necessary. On January 13, 2003, a Newark, New Jersey police officer observed
two men engaged in a physical altercation on the street. One of the men, who was later
identified as Byrd, was standing over the other man, William Johnson, who was lying
face down on the sidewalk. As the officer approached the scene, he discerned that Byrd
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was pointing a handgun at Johnson, who appeared to be struggling to gain possession.
Byrd ignored the officer’s commands to drop the handgun and the altercation continued
until Johnson gained control over the gun. Byrd attempted to flee the scene on foot but
was quickly apprehended and taken into custody. He later was charged with possession
of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).
Byrd entered into a written plea agreement with the United States Attorney’s
Office, agreeing to the following stipulations: (1) due to his crime of conviction, U.S.S.G.
§ 2K2.1 was Byrd’s applicable Sentencing Guideline; (2) he had previously sustained two
felony convictions for distributing and possessing with the intent to distribute a controlled
substance on or near school property in violation of N.J. Stat. Ann. § 2C:35-7; (3) his
base offense level was 24; (4) because he committed an aggravated assault with a firearm
specific offense characteristic (i.e., possession of a firearm in connection with another
felony offense), § 2K2.1(b)(5) applied for a four-level upward adjustment; (5) he
possessed ammunition and one loaded firearm on the date in question; and (6) he was
entitled to a three-point downward adjustment for acceptance of responsibility under §
3E1.1.
Consistent with the stipulations provided by the plea agreement, the District Court
correctly calculated Byrd’s applicable sentencing range at 110 to 137 months
imprisonment. Because Byrd’s offense carried a statutory maximum of 120 months,
however, his range was adjusted to 110 to 120 months. The Court sentenced Byrd to 115
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months imprisonment, three years supervised release, a fine of $1,000, and a special
assessment of $100. It also imposed a discretionary alternative sentence using the
statutory range of 0 to 120 months as its parameters and, again, sentenced Byrd to 115
months imprisonment.
Defense counsel’s Anders brief raises two issues: (1) whether the District Court
made findings of fact with regard to Byrd’s sentence in violation of Blakely v.
Washington,
542 U.S. 296 (2004); and (2) whether the District Court sentenced Byrd in
violation of United States v. Booker,
543 U.S. 220 (2005). We agree with defense
counsel that any Blakely argument raised by Byrd is frivolous. This is because he was
sentenced solely on facts that he admitted in his plea colloquy and facts admitted by
defendants are expressly exempted from Blakely’s ambit.
See 542 U.S. at 303 (stating
“the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant” (emphasis added)).
Defense counsel also argues that any Booker argument raised by Byrd would be
frivolous because, while the District Court imposed a mandatory 115 month sentence on
Byrd pursuant to the Guidelines, it also imposed an identical alternative sentence under a
indeterminate sentencing scheme in anticipation of the Supreme Court’s ruling in Booker.
This contention is on point with our decision in United States v. Hill, where we held that
“where . . . a District Court clearly indicates that an alternative sentence would be
5
identical to the sentence imposed under the Guidelines,” a remand is not
warranted—because “any error that may attach to a defendant’s sentence under Booker is
harmless.”
411 F.3d 425, 426 (3d Cir. 2005). We, therefore, affirm the sentence imposed
by the District Court and grant counsel’s motion to withdraw.
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