UNITED STATES of America v. Alan D. GARRETT, a/k/a Allen Garrett a/k/a Allan Garrett a/k/a Tyrone Garrett a/k/a Tyree Garrett a/k/a Tyrell Garrett, Alan D. Garrett, Appellant.
No. 12-1338
United States Court of Appeals, Third Circuit
December 5, 2012
139
Submitted Under Third Circuit L.A.R. 34.1(a) Sept. 28, 2012.
Alan D. Garrett, Butner, NC, pro se.
Before: McKEE, Chief Judge, JORDAN and VANASKIE, Circuit Judges.
OPINION
VANASKIE, Circuit Judge.
Alan Garrett pled guilty to the charge of being a felon in possession of a firearm, in violation of
I.
We write primarily for the parties, who are familiar with the facts and procedural history of this case. Accordingly, we set forth only those facts necessary to our analysis.
On August 20, 2010, at approximately 10:45 PM, police officers, responding to a radio call for shots fired, observed Garrett leaning on a fence in front of a residence and attempting to walk away in a staggered, unsteady manner. The officers ordered Garrett to stop, but he did not comply. The officers pursued Garrett as he attempted to flee. As police tackled him to the ground, Garrett removed a loaded handgun from his waistband. Garrett had been previously convicted of a felony.
On April 13, 2011, in a single-count indictment, the government accused Garrett of possessing a firearm as a convicted felon. On September 21, 2011, Garrett entered into a plea agreement with the government. On January 26, 2012, Garrett was sentenced to 77 months’ incarceration, the bottom of the advisory guidelines range.
This appeal ensued. The District Court had jurisdiction under
II.
A.
Pursuant to Anders, counsel for a defendant may seek to withdraw if, after reviewing the District Court record, he or she is “persuaded that the appeal presents no issue of even arguable merit.” See 3d Cir. L.A.R. 109.2(a). Specifically, counsel must “(1) satisfy the court that counsel has thoroughly examined the record in search of appealable issues, and (2) ... explain why the issues are frivolous.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001) (citations omitted). Although not every conceivable claim need be raised and rejected, counsel “must meet the conscientious examination’ standard set forth in Anders.” Id. When presented with an Anders brief, we engage in a two-step analysis to consider: “(1) whether counsel adequately fulfilled [Third Circuit Local Appellate Rule 109.2(a)‘s] requirements; and (2) whether an independent review of the record presents any nonfrivolous issues.” Id. If we find that “the Anders brief initially appears adequate on its face,” the second step of the inquiry will be “confine[d] ... to those portions of the record identified by ... [the] Anders brief.” Id. at 301. If this Court agrees with counsel‘s assessment of the appealable issues, we “will grant counsel‘s Anders motion and dispose of the appeal without appointing new counsel.” Id. at 300. When reviewing an Anders motion, we exercise plenary review. See Simon v. Gov‘t of Virgin Islands, 679 F.3d 109, 114 (3d Cir.2012).
Garrett‘s counsel identifies one potentially appealable issue: whether Garrett‘s criminal history category was improperly calculated. In untimely pro se filings, Garrett has presented some additional arguments in support of his appeal.1
B.
The District Court found that Garrett‘s Criminal History Category points totaled nineteen, producing a Criminal History Category of VI. At sentencing, Garrett requested that counsel object to the calculation of his criminal history points. Counsel did so, but later withdrew that objection after concluding that the criminal history points were correctly calculated. The Anders brief questions the inclusion of three of Garrett‘s prior convictions in his criminal history category and whether five prior convictions should have been grouped as two separate single sentences. Garrett‘s counsel concludes that the issues pertaining to the criminal history scoring are frivolous.
1.
United States Sentencing Guidelines (“U.S.S.G“)
(1) Any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant‘s commencement of the instant offense is counted [in the criminal history category]. Also counted are any prior sentences of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year period.
(2) Any other prior sentence that was imposed within ten years of the defendant‘s commencement of the instant offense is counted.
Garrett was arrested for possessing a firearm as a convicted felon on August 20, 2010. Three of Garrett‘s prior arrests occurred before August 20, 1995, fifteen years from the date of the current offense. Specifically, the arrests occurred on April 13, 1993, June 13, 1994, and February 6, 1995. Garrett, however, was not sentenced on these charges until February 8, 1996. Furthermore, Garrett was sentenced in excess of the required one year and one month for each of the three offenses, qualifying them for use under
2.
U.S.S.G. Section
If the defendant has multiple prior sentences, determine whether those sentences are counted separately or as a single sentence. Prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). If there is no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day. Count any prior sentence covered by (A) or (B) as a single sentence.
The Guidelines specifically mandate that offenses separated by an intervening arrest are to be considered separately when calculating a defendant‘s criminal history score. See
B.
In three untimely submissions, treated as Garrett‘s pro se brief, Garrett raises three issues for appeal. Garrett contends that his sentence under the plea agreement exceeded the statutory maximum, and that several prior convictions should not have been counted as felonies.
1.
Garrett contends that his sentence exceeds the statutory maximum for the offense to which he pled guilty. Garrett argues that a defendant sentenced for violation of
(a)(1) Except as otherwise provided in this subsection, subsection (b), (c), (f), or
(p) of this section, or in section 923, whoever- (A) knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter or in applying for any license or exemption or relief from disability under the provisions of this chapter;
(B) knowingly violates subsection (a)(4), (f), (k), or (q) of section 922;
(C) knowingly imports or brings into the United States or any possession thereof any firearm or ammunition in violation of section 922(l); or
(D) willfully violates any other provision of this chapter, shall be fined under this title, imprisoned not more than five years, or both.
(2) Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.
Garrett pled guilty to the charge of being a felon in possession of a firearm in violation of
2.
Next, Garrett contends only sentences imposed within ten years of the commencement of the instant offense are to be considered in calculating the Criminal History Score. Garrett argues that three of his offenses fall outside the ten-year window, and thus were incorrectly considered by the District Court.
The current offense was committed on August 20, 2010. Garrett has eight prior convictions, seven of which were included in calculating his Criminal History Score. On October 15, 1993, Garrett was convicted of unlawful possession of a weapon (handgun). He was originally sentenced to 1 year probation, but due to a probation violation on February 8, 1996, Garrett was resentenced to three years’ imprisonment. On the same date, Garrett was sentenced for a second unlawful possession of a weapon (firearm) charge and criminal attempt to commit murder. Garrett was sentenced to 5 years’ imprisonment and 18 years’ imprisonment respectively. On September 3, 2002, Garrett was convicted of escape from detention and sentenced to four years’ imprisonment. On December 6, 2003, Garrett was convicted of hindering apprehension and sentenced to two days’ imprisonment.3 On October 16, 2007, Garrett was convicted of burglary and sentenced to 3 years’ imprisonment. On October 26, 2007, Garrett was convicted of possession of a controlled substance with intent to distribute within 1,000 feet of a school and sentenced to three years’ im-
As pointed out above, a sentence imposed within fifteen years of the commission of the offense under consideration is counted if, inter alia, the sentence exceeded one year and one month. Garrett was sentenced to prison terms exceeding one year and one month for three separate offenses more than ten but less than fifteen years ago, and these sentences were properly considered in calculating his criminal history score. His convictions for which sentences were imposed within ten years of the commission of the instant offense also were properly counted. Accordingly, Garrett‘s contention is frivolous.
3.
Last, Garrett argues that two of his prior convictions were incorrectly considered felonies and therefore should not have been considered in the calculation of his Criminal History Score because they fall outside of the non-felony ten-year window. Specifically, Garrett contends that neither of his unlawful possession of a weapon charges should have been considered.
Garrett has two prior convictions for unlawful possession of a weapon. Garrett received a sentence of three years’ imprisonment for the first offense, and five years’ imprisonment for the second.5
III.
Counsel adequately fulfilled the requirements of Anders. Our independent review of the record does not disclose any nonfrivolous grounds for appeal. For the foregoing reasons, we will affirm the judgment of the District Court and grant defense counsel‘s motion to withdraw.