Filed: Oct. 18, 2019
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-2659 _ UNITED STATES OF AMERICA v. NASIR THOMPAS, Appellant _ On Appeal from the United States District Court for the Eastern District of Pennsylvania District Court No. 2-17-cr-00449-002 District Judge: The Honorable Gerald J. Pappert Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 26, 2019 Before: SMITH, Chief Judge, McKEE and PHIPPS, Circuit Judges (Filed: October 18, 2019) _ OPINION _ SMITH, Chief Ju
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-2659 _ UNITED STATES OF AMERICA v. NASIR THOMPAS, Appellant _ On Appeal from the United States District Court for the Eastern District of Pennsylvania District Court No. 2-17-cr-00449-002 District Judge: The Honorable Gerald J. Pappert Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 26, 2019 Before: SMITH, Chief Judge, McKEE and PHIPPS, Circuit Judges (Filed: October 18, 2019) _ OPINION _ SMITH, Chief Jud..
More
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-2659
_____________
UNITED STATES OF AMERICA
v.
NASIR THOMPAS,
Appellant
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-17-cr-00449-002
District Judge: The Honorable Gerald J. Pappert
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 26, 2019
Before: SMITH, Chief Judge, McKEE and PHIPPS, Circuit Judges
(Filed: October 18, 2019)
_____________________
OPINION
_____________________
SMITH, Chief Judge.
Nasir Thompas appeals his judgment of conviction and sentence. His
counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967),
asserting that no nonfrivolous issues exist for appeal, together with a motion by
counsel to withdraw. For the following reasons, we will grant counsel’s motion
and affirm the judgment.
I.
Based upon allegations that Thompas participated in a June 6, 2017 robbery
of a 7-Eleven and a June 12, 2017 robbery of a Godfrey Food Mart, a superseding
indictment charged him with two counts of Hobbs Act robbery, 18 U.S.C.
§ 1951(a), and two counts of brandishing a firearm during a crime of violence, 18
U.S.C. § 924(c). Thompas pleaded not guilty and proceeded to a three-day jury
trial. At trial, the prosecution introduced, inter alia: (1) video surveillance footage
of the robberies; (2) testimony from a co-defendant who cooperated with the
prosecution and implicated Thompas; (3) expert testimony concerning Thompas’s
fingerprints, which were recovered from one of the crime scenes; (4) testimony
from Thompas’s stepfather that the gun used during the robberies had been stolen
from him; and (5) Thompas’s videotaped confessions to having committed both
robberies. At the conclusion of trial, the jury found Thompas guilty of all four
charges.
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
2
At sentencing, Thompas did not object to the presentence investigation
report or the District Court’s calculation of the applicable Guidelines range.
Thompas moved for a downward variance, which the District Court denied. After
considering the factors set forth in 18 U.S.C. § 3553(a), the District Court imposed
sentences of concurrent terms of 57 months for the two Hobbs Act charges, and
consecutive terms of 84 months and 300 months for the two firearm charges, for a
total term of 441 months of imprisonment, to be followed by a five-year term of
supervised release.
Thompas timely filed a pro se notice of appeal. His counsel filed an Anders
brief and a motion to be relieved from the representation. Although Thompas
sought and was granted additional time in which to file a pro se brief in support of
his appeal, he did not file such a brief.
II.1
In Anders v.
California, 386 U.S. at 744, the Supreme Court held that if,
after conscientious examination, counsel finds a matter to be wholly frivolous,
counsel should advise the Court and request permission to withdraw from the
representation. In such a case, we conduct a plenary review to determine:
(1) whether counsel adequately fulfilled the requirements of 3d Cir. L.A.R.
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
3
109.2(a), including filing a sufficient motion to withdraw and supporting brief; and
(2) whether an independent review of the record reveals any non-frivolous issues.
Simon v. Gov’t of Virgin Islands,
679 F.3d 109, 114–15 (3d Cir. 2012). “Where
the Anders brief initially appears adequate on its face, the proper course is for the
appellate court to be guided in reviewing the record by the Anders brief itself.”
United States v. Youla,
241 F.3d 296, 301 (3d Cir. 2001) (citation and internal
quotation marks omitted). A complete scouring of the record is not required.
Id.
If we judge an appeal to be without arguable merit, we must grant trial counsel’s
motion and dispose of the appeal without appointing new counsel. 3d Cir. L.A.R.
109.2(a).
III.
Counsel observes that one potential appeal issue could concern Thompas’s
videotaped confessions. In his Anders brief, counsel states that he declined to
move to suppress the confessions because Thompas executed Miranda waivers
before each confession and there was no evidence of coercion. Counsel further
observes that, even if the confessions had not been admitted at trial, the evidence
of guilt was overwhelming. As to Thompas’s sentence, counsel observes that there
are no appealable issues because the District Court correctly calculated the
advisory Guidelines range and examined the § 3553(a) factors, and the sentence
imposed was both procedurally and substantively reasonable.
4
The Anders brief adequately explains why there are no nonfrivolous issues
for appeal. See
Youla, 241 F.3d at 300. Our independent review of the record
leads us to the same conclusion.
IV.
We are satisfied that Counsel has fulfilled his obligation under Anders and
3d Cir. L.A.R. 109.2(a), and our independent review of the record has identified no
nonfrivolous ground for appeal. If, as here, an appeal is judged to be without
arguable merit, this Court must grant trial counsel’s motion and dispose of the
appeal without appointing new counsel. 3d Cir. L.A.R. 109.2(a). We therefore
will grant counsel’s motion to withdraw and affirm the judgment.
5