Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 12, 2008.
Filed: September 15, 2008.
On Appeal from the United States District Court for the District of New Jersey, District Court No. 05-CR-557, District Judge: The Honorable Garrett E. Brown, Jr.
George S. Leone, Esq., Caroline A. Sadlowski, Esq., Office of United States Attorney, Newark, NJ, for Appellee.
Maria D. Noto, Esq., Matawan, NJ, for Appellant.
Before: McKEE, SMITH, and WEIS, Circuit Judges.
On July 21, 2005, Kurtis Barnes was charged with one count of knowingly and intentionally conspiring to distribute at least 100 grams of heroin in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B), and six counts of knowingly and intentionally distributing heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). On October 18, 2005, Barnes entered a plea of guilty to the § 846 conspiracy offense, pursuant to a plea agreement.
Barnes subsequently sought, pro se, to withdraw his plea. At a hearing on March 7, 2006, Barnes, while represented by counsel, withdrew his Motion to Withdraw his guilty plea. Nevertheless, on April 20, 2006, in yet another hearing, Barnes again asserted his desire to withdraw his plea and proceed to trial because, according to Barnes, he had not been provided an opportunity to inspect certain evidence against him (video surveillance tapes). The Court adjourned the hearing, allowing for Barnes to have an opportunity to view the evidence.
Apparently Barnes backed down from his request for a trial because his sentencing hearing was held on May 24, 2006. At that time, the government moved for a downward departure on behalf of Barnes for his substantial cooperation with ongoing government investigations. The District Court agreed that Barnes's cooperation was "very substantial" and sentenced Barnes to a term of 175 months of imprisonment, 5 years of supervised release, and a $3,000 fine — a punishment that constituted a three-level downward departure from the guideline range of 262 to 327 months. This appeal followed.
Barnes contends that the District Court failed to give sufficient weight to the extent of his cooperation with the government, and as such, departed downward an insufficient amount in sentencing. Barnes's counsel filed an appellate brief raising this issue and simultaneously moved to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In Anders, the Supreme Court stated that the "constitutional requirement of substantial equality and fair process" means that appellate counsel must act as an advocate for the defendant. 386 U.S. at 744, 87 S.Ct. 1396. Thus, counsel's
role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.
Id. In United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001), we explained that an Anders brief must demonstrate that counsel has "thoroughly examined the record in search of appealable issues," and it must "explain why the issues are frivolous." Accordingly, our inquiry is twofold: (1) whether counsel adequately fulfilled the requirements of Anders; and (2) "whether an independent review of the record presents any nonfrivolous issues." Id. (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000)); see also Anders, 386 U.S. at 744, 87 S.Ct. 1396 (explaining that the court must proceed, "after a full examination of all the proceedings, to decide whether the case is wholly frivolous.").
We are satisfied that counsel thoroughly examined the record for issues of arguable merit and fulfilled the requirements of Anders. Counsel found no non-frivolous issues for appeal. Counsel appropriately recognized that discretionary downward departures under the Guidelines are not reviewable absent legal error. See United States v. Cooper, 437 F.3d 324, 332-33 (3d Cir. 2006) (citing United States v. Khalil, 132 F.3d 897, 898 (3d Cir. 1997) ("[W]e could not possibly have jurisdiction to hear an appeal by a defendant where there has been some exercise of the court's discretion to depart downward.")). Barnes raises no legal question with respect to the downward departure of his sentence but challenges only the extent of the District Court's exercise of discretion. See Khalil, 132 F.3d at 898. Therefore, we decline to review Barnes's appeal, and as such, agree that this claim is frivolous.
In addition, our own independent review of the record fails to reveal any nonfrivolous issues for appeal. Accordingly, we will grant counsel's motion to withdraw pursuant to Anders and affirm the judgment of the District Court. We certify that the issues presented in the appeal lack legal merit and thus do not require the filing of a petition for writ of certiorari with the Supreme Court. 3d Cir. L.A.R. 109.2(b).