Filed: Feb. 06, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 2-6-2008 USA v. Belcher Precedential or Non-Precedential: Non-Precedential Docket No. 07-1341 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Belcher" (2008). 2008 Decisions. Paper 1639. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1639 This decision is brought to you for free and open access by the Opinions of the United Sta
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 2-6-2008 USA v. Belcher Precedential or Non-Precedential: Non-Precedential Docket No. 07-1341 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Belcher" (2008). 2008 Decisions. Paper 1639. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1639 This decision is brought to you for free and open access by the Opinions of the United Stat..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
2-6-2008
USA v. Belcher
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1341
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"USA v. Belcher" (2008). 2008 Decisions. Paper 1639.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1639
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 2008 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NOT PRECEDENTIAL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. 07-1341
____________
UNITED STATES OF AMERICA
v.
JAMES C. BELCHER,
Appellant
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 06-cr-00154)
District Judge: William W. Caldwell
____________
Submitted Under Third Circuit LAR 34.1(a)
January 11, 2008
Before: FISHER, HARDIMAN and STAPLETON, Circuit Judges.
(Filed: February 6, 2008)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
This appeal arises out of James Belcher’s guilty plea to possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and the District Court’s
subsequent sentence of 78 months imprisonment. After filing a timely notice of appeal,
Belcher’s counsel filed a brief and motion to withdraw representation pursuant to Anders
v. California, 386 U.S. 738 (1967). For the reasons that follow, we will grant counsel’s
Anders motion and affirm the District Court’s judgment of sentence.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
On June 21, 2006, Belcher pleaded guilty to one count of possession of child
pornography. The United States Probation Office prepared a Presentence Investigation
Report (“PSR”), which the District Court adopted without any changes. Utilizing the
applicable United States Sentencing Guidelines (“Guidelines”), it determined that the
Total Offense Level was 27. The base offense level for a violation of 18 U.S.C.
§ 2252A(a)(5)(B) is 18, and the specific offense characteristics, including the age of the
children involved in the films, the use of a computer, and the number of images,
necessitated a 9-level increase.1 Additionally, Belcher’s prior conviction for invasion of
privacy placed him in Criminal History Category II. Based on these calculations, the
advisory Guidelines range was 78 to 97 months imprisonment. Accordingly, the District
1
The PSR did not recommend a downward adjustment for Acceptance of
Responsibility based on numerous comments Belcher made that minimized his level of
responsibility, including a statement that viewing child pornography should not be illegal.
Although Belcher initially objected to this omission, he did not object at the sentencing
hearing.
2
Court imposed a 78-month sentence. It also imposed a fine and special assessment
totaling $600, and supervised release for a term of life.
Belcher filed a timely notice of appeal. Concluding that there were no
nonfrivolous issues to appeal, Belcher’s counsel filed a motion to withdraw and a
supporting brief. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).
II.
In Anders v. California, the Supreme Court held that “if counsel finds his [client’s
appeal] to be wholly frivolous, after a conscientious examination of it, he should so
advise the court and request permission to withdraw.” 386 U.S. at 744. In doing so,
counsel must submit a brief addressing any issue that “might arguably support the
appeal.” Id.; see also L.A.R. 109.2(a).2 We must then determine whether the appeal is
“wholly frivolous.”
Anders, 386 U.S. at 744. In making this determination, we evaluate:
“(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,
241 F.3d 296, 300 (3d Cir. 2001).
2
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
pursuant to Anders v. California, 386 U.S. 738,
87 S. Ct. 1396,
18 L. Ed. 2d 493 (1967),
which shall be served upon the appellant and the United States.”
3
A.
Under the first prong of this inquiry, counsel must “satisfy the court that counsel
has thoroughly examined the record in search of appealable issues, and . . . explain why
the issues are frivolous.” Youla, 241 F.3d at 300. In his brief, counsel addressed three
possible issues: (1) whether the District Court had jurisdiction to take Belcher’s guilty
plea and impose sentence; (2) whether the guilty plea was valid; and (3) whether the
District Court properly calculated the sentence and the sentence was reasonable. Counsel
also provided an explanation as to why each of these issues are frivolous. Having
reviewed counsel’s brief and the accompanying materials, we conclude that he has
satisfied this requirement.
B.
After concluding that counsel has satisfied the first prong, we must then review the
record and determine whether any nonfrivolous issues for appeal exist. “[A]n appeal on a
matter of law is frivolous where ‘[none] of the legal points [are] arguable on their
merits.’” Neitzke v. Williams, 490 U.S. 319, 325 (1989) (quoting
Anders, 386 U.S. at
744). Although our review is independent, if the Anders brief appears to be adequate on
its face, a “complete scouring of the record” is unnecessary.
Youla, 241 F.3d at 301.
Instead, we can allow the Anders brief to guide our review.
Id. In the present case,
counsel’s Anders brief is adequate on its face, and thus, it will guide our review.
4
First, counsel raises the issue of the District Court’s jurisdiction to conduct
Belcher’s plea colloquy and impose sentence. However, he established that this issue
lacks merit because the District Court has jurisdiction “of all offenses against the laws of
the United States” pursuant to 18 U.S.C. § 3231. Therefore, the District Court properly
exercised jurisdiction over the plea and sentencing proceedings.
Second, counsel raises the issue of whether Belcher’s guilty plea was valid. For a
guilty plea to meet the constitutional requirements established in Boykin v. Alabama, 395
U.S. 238 (1969), and the statutory requirements of Federal Rule of Criminal Procedure
11, we have stated that, during the plea colloquy:
“The court must advise the defendant, inter alia, of the waiver of certain
constitutional rights by virtue of a guilty plea, the nature of the charges to
which he or she is pleading guilty, the maximum possible penalty to which
he or she is exposed, the court’s obligation to apply the Sentencing
Guidelines [and] . . . discretion to depart from those guidelines under some
circumstances, and the terms of any plea-agreement provision waiving the
right to appeal or to collaterally attack the sentence. . . . The district court
must ensure that the defendant receives these caveats, understands them,
and still wishes of his or her own volition to plead guilty.
United States v. Schweitzer, 454 F.3d 197, 202-03 (3d Cir. 2006) (internal quotation
marks and citations omitted). After reviewing the record of the plea colloquy, we
conclude that the District Court thoroughly advised Belcher of all of the above issues, and
Belcher indicated that he understood the consequences of his plea. Therefore, this issue
lacks merit.
5
Finally, we agree with counsel that no nonfrivolous issues exist as to the District
Court’s sentencing of Belcher. The District Court properly calculated the Guidelines
range of 78 to 97 months as required by United States v. Gunter, 462 F.3d 237, 247 (3d
Cir. 2006). Moreover, Belcher’s sentence was not unreasonable under United States v.
Booker,
543 U.S. 220 (2005), and its progeny because the District Court adequately
considered the 18 U.S.C. § 3553(a) factors in determining Belcher’s sentence. See United
States v. Cooper,
437 F.3d 324, 329 (3d Cir. 2006). Accordingly, our independent review
of the record demonstrates that Belcher has no nonfrivolous issues for appeal.
III.
For these reasons, we will grant defense counsel’s Anders motion and affirm the
sentence imposed by the District Court.3
3
As a result, we conclude that it is not necessary to appoint counsel to file a
petition for rehearing in this Court or a petition for writ of certiorari in the United States
Supreme Court on Belcher’s behalf. See L.A.R. 109.2(b).
6
