Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-12-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2480




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Recommended Citation
"USA v. Bailey" (2009). 2009 Decisions. Paper 1874.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1874


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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                    No. 07-2480
                                   _____________

                          UNITED STATES OF AMERICA

                                          v.

                                  ELLERI BAILEY,
                                       Appellant


                     Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                         (D.C. Criminal No. 05-cr-00619-3)
                     District Judge: Honorable Cynthia M. Rufe


                      Submitted Under Third Circuit LAR 34.1(a)
                                  February 6, 2009

                  Before: RENDELL and ROTH, Circuit Judges and
                            HAYDEN, District Judge*

                             (Filed: February 12, 2009)




                             OPINION OF THE COURT




     *Honorable Katharine S. Hayden, District Judge for the District of New Jersey
(Newark), sitting by designation.
RENDELL, Circuit Judge.

       Elleri Bailey pled guilty to one count of distributing a substance containing

cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2. The District

Court found that Bailey had two prior convictions for controlled substances offenses,

thereby qualifying him as a career offender pursuant to U.S.S.G. § 4B1.2(b). The

guideline range was 188 to 235 months. The District Court sentenced Bailey to 188

months in prison followed by a six year term of supervised release, a fine of $2,000.00,

and several other conditions. He filed a timely appeal. Bailey’s counsel has filed a brief

requesting permission to withdraw pursuant to Anders v. California, 

(1967),

because after a conscientious review of the record, he is unable to discern any non-

frivolous issues for appeal. We have jurisdiction under 18 U.S.C. § 3742(a) and 28

U.S.C. § 1291.

       In assessing an Anders brief, we must determine: 1) whether counsel has

thoroughly examined the record for appealable issues and has explained why any such

issues are frivolous; and 2) whether an independent review of the record presents any

non-frivolous issues. United States v. Thomas, 

, 425 (3d Cir. 2004) (citing

United States v. Youla, 

, 300 (3d Cir. 2001)). If the Anders brief appears

adequate on its face, we review only the portions of the record identified in the brief and

any issues raised by an appellant in a pro se brief. See 

. We find

that counsel’s Anders brief is adequate and, as Bailey has not filed a pro se brief, it will

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guide our independent review of the record.

       Pursuant to his obligation, counsel has identified a single potential issue to support

an appeal: whether the District Court erred by not granting a variance below the

guideline range based on the length of time that has elapsed from Bailey’s commission of

the crimes that led to his career offender status and his positive works in the community

since then. We review the District Court’s sentence for reasonableness under an abuse of

discretion standard. See Gall v. United States, 

(2007). During the

sentencing proceeding, Bailey’s counsel argued that the District Court should impose a

sentence below the guideline range because the career offender enhancement was

supported by convictions which occurred fifteen years before the defendant committed

the instant offense and did not adequately reflect Bailey’s history and character. Counsel

presented substantial evidence of Bailey’s volunteer activities, particularly coaching

football and basketball in an at-risk youth athletics program, arguing to the District Court

that it supported a sentence lower than the guideline range.

       Counsel has submitted that this argument must fail because the District Court

imposed a sentence within the guideline range, taking into account Bailey’s past criminal

history and other factors required by 18 U.S.C. § 3553(a). We agree. The District Court

addressed both aspects of this argument in its comments at the time of sentencing,

concluding that:

              [One hundred and eighty-eight months’ imprisonment] happens to be
       the guideline range, but the low end of it, and what I have done to choose that

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      is to determine past criminal conduct, as well as trying to predict ongoing and
      future criminal conduct, and the best predictors are the past.

              I also have used all of the information presented as to Mr. Bailey’s
      ability to touch others and inform them of hope in their lives, to put you at the
      lowest end that I could of the guidelines, not that I am bound by the guidelines,
      but I think the term is the right one for your history and for your conduct, Mr.
      Bailey.

(App. R-134-35). The District Court’s refusal to impose a sentence lower than the

guideline range was reasonable, and would not support an appeal.

      Our independent review of the record yields no other non-frivolous arguments that

could support an appeal and we are satisfied that the requirements of Anders have been

met. Accordingly, we will affirm the judgment of the District Court and, in a separate

order, grant counsel’s motion to withdraw.




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