Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-7-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1807




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"USA v. Todd" (2008). 2008 Decisions. Paper 900.
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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-1807


                           UNITED STATES OF AMERICA

                                           v.

                                     JOHN TODD,
                                            Appellant


                    On Appeal from the United States District Court
                           for the District of New Jersey
                          D.C. Criminal No. 03-cr-00703
                         (Honorable Joseph A. Greenaway)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     May 5, 2008

       Before: SCIRICA, Chief Judge, BARRY and HARDIMAN, Circuit Judges.

                                  (Filed July 7, 2008)


                              OPINION OF THE COURT


SCIRICA, Chief Judge.

       John Todd appeals his criminal sentence and conviction. We will affirm.1




   1
   Todd’s attorney filed a brief under Anders v. California, 

(1967), and a
motion to withdraw as court-appointed counsel.
       Todd pleaded guilty under a plea agreement to two counts of distribution and

possession with intent to distribute 500 grams or more of cocaine and quantities of

Flunitrazepam (Rufinal) in violation of 21 U.S.C. §§ 841(a)(1)&(b)(1)(B) and 21 U.S.C.

§§ 841(a)(1)&(b)(1)(C). The court found Todd’s total offense level was 31 with a

corresponding guideline range of 188 to 235 months,2 and sentenced Todd to 120 months

incarceration.

       The plea agreement included a conditional waiver of appeal. Under the plea

agreement, Todd waived his right to file any appeal, collateral attack, or any other writ or

motion under 18 U.S.C. § 3742 or 28 U.S.C. § 2255 challenging his sentence so long as it

fell within or below the guidelines range resulting from an offense level of 29. The

Government waived the right to appeal if the court imposed a sentence within or above

the guidelines range resulting from an offense level of 29. Todd was specifically given

notice in the plea agreement he could be designated by the District Court as a career

criminal. Accordingly, both Todd and the Government reserved any right under 18

U.S.C. § 3742 to appeal the court’s determination of criminal history. Defense counsel

and the court explained to Todd the proposed plea agreement, his right to a jury trial, the

risks associated with trial and pleading, and the advisory nature of the sentencing

guidelines. Todd entered his plea knowingly, intelligently, and voluntarily.



   2
    The base offense level was 34 because the court designated Todd a career criminal
under U.S.S.G. § 4B1.1. The court then applied a three-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1.

                                             2
       The court found Todd’s total offense level was 31 with a corresponding guideline

range of 188 to 235 months. When given the opportunity to offer mitigating factors,

defense counsel argued four factors: 1) Todd’s prior incarceration in a state facility was

particularly hard because of the poor conditions, 2) lengthy incarceration would be an

emotional hardship on Todd’s family, 3) Todd cooperated with the Government, and 4)

Todd received threatening letters regarding his cooperation with the Government. The

court granted the Government’s U.S.S.G. § 5K1.1 motion for consideration of Todd’s

substantial assistance. The court then sentenced Todd to 120 months incarceration,

departing downward from the guideline minimum of 188 months. Additionally, the

sentence departed downward from the offense level 29 guideline range of 151-188

months. Therefore, Todd’s sentence falls with the range of months stipulated in the plea

agreement.

       Our review reveals defense counsel thoroughly considered all plausible bases for

appeal and explained in the Anders brief why such issues were legally frivolous.3


   3
    At sentencing, defense counsel argued against the inclusion of a 1988 conviction in
the career criminal determination because Todd was initially sentenced to probation
rather than imprisonment for that offense. Counsel argued because the sentence was
probation, it did not meet the requirements of § 4A1.2. On appeal, counsel raised the
issue in the Anders brief.
        An appeal on a matter of law is frivolous if “none of the legal points are arguable
on their merits.” United States v. Youla, 

, 301 (3d Cir. 2001). The Fourth
Circuit directly addressed this issue in United States v. Romary, 

(4th Cir.
2001). In Romary, the court held an offense initially punished by probation, which is
subsequently revoked and punished by imprisonment exceeding the term indicated in §
4A1.2, must be included as a predicate felony for the purposes of the career criminal
                                                                               (continued...)

                                             3
Counsel examined the guilty plea colloquy transcript, the sentencing transcript, the

Presentence Investigative Reports, and other documents. Todd knowingly and voluntarily

entered into the guilty plea agreement, waiving his Constitutional rights. Todd

acknowledged he understood the charges and essential elements to which he pleaded

guilty. The District Court’s sentence was 68 months below the guideline minimum.

Based on our own examination of the record, we conclude that counsel satisfied the

requirements of Third Circuit Local Appellate Rule 109.2(a) under Anders.

       Todd also submitted a brief raising ineffective assistance of counsel and a motion

requesting appointment of new counsel. We do not ordinarily consider ineffective

assistance claims on direct review, as such claims are “best decided in the first instance in

a collateral action.” United States v. Thornton, 

, 272 (3d Cir. 2003).

       For the foregoing reasons, we will affirm the judgment and sentence of the District

Court. Defense counsel’s motion to withdraw is granted.




   3
     (...continued)
calculation. 

The same issue was also addressed by the Eleventh Circuit in
United States v. Shannon, 

(11th Cir. 2006). The court upheld the lower
court’s inclusion of an offense as a predicate felony under U.S.S.G. § 4B1.1, which was
initially punished by probation but subsequently revoked and punished by imprisonment.

Accordingly, because the guideline provisions at issue are unambiguous, and
the reasoning in Romary and Shannon is persuasive, we find this issue in this case has no
merit.

                                              4