507 F. App'x 139
3rd Cir.2012Background
- Garrett pled guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
- Counsel filed an Anders brief asserting no nonfrivolous issues; court agrees and will affirm and allow withdrawal.
- Facts: Aug. 20, 2010 police pursued Garrett after shots fired call; Garrett was tackled and a loaded handgun recovered; he had a prior felony conviction.
- On Apr. 13, 2011 indicted; plea on Sept. 21, 2011; sentenced Jan. 26, 2012 to 77 months in prison.
- District Court sentenced Garrett with a Criminal History Category of VI (19 points); Garrett challenged the criminal history calculation via pro se submissions, which the court treated as additional arguments.
- The court conducted Anders review and affirmed the district court, finding no nonfrivolous issues on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the criminal history points were properly calculated | Garrett contends three priors and grouping were incorrect | The district court properly counted prior sentences under 4A1.2(e)(1) and 4A1.2(a)(2) | No error; calculations proper |
| Whether Garrett's sentence exceeded the statutory maximum | Garrett argues § 922(g)(1) carries a 5-year max | § 922(g)(1) falls under § 924(a)(2) with a 10-year max; sentence of 6 years 5 months is within limit | Sentence within statutory maximum |
| Whether certain priors outside the ten-year window were properly counted | Some offenses were outside ten years and should not affect score | All applicable sentences within 15 years and those within 10 years were properly included | Counted properly; no error in CHC calculation |
| Whether two unlawful possession of a weapon convictions were incorrectly treated as felonies | Two such convictions should not have been counted as felonies | Each offense yielded >1 year 1 month; properly counted under 4A1.2(e)(1) | Properly counted; no error |
Key Cases Cited
- United States v. Youla, 241 F.3d 296 (3d Cir. 2001) (administrative Anders review standard and duties of counsel)
- Simon v. Gov’t of Virgin Islands, 679 F.3d 109 (3d Cir. 2012) ( plenary review of Anders briefs)
- United States v. Baltas, 236 F.3d 27 (1st Cir. 2001) (prior sentence properly counted within 15-year window)
- United States v. Love, 134 F.3d 595 (4th Cir. 1998) (prior sentences counted even if concurrent when within 15 years)
- United States v. Ybarra, 70 F.3d 362 (5th Cir. 1995) (criminal history calculation regarding prior offenses within 15 years)
- United States v. Salmon, 94 F.2d 1106 (3d Cir. 1991) (treatment of sentences for prior offenses in criminal history)