Case Information
*1 Before: SLOVITER and HARDIMAN, Circuit Judges ,
and POLLAK, District Judge . [*] (Filed: April 27, 2010)
OPINION
________________ *2
POLLAK, District Judge
I.
Defendant-appellant Jaron Burnett pled guilty in the United States District Court
for the District of New Jersey to a one-count information charging him with transporting
an individual in interstate commerce for the purpose of engaging in prostitution in
violation of 18 U.S.C. § 2421. The district court exercised jurisdiction over the matter
pursuant to 18 U.S.C. § 3231. On March 17, 2009, the district court sentenced Burnett to
105 months’ imprisonment, fifteen years of supervised release, and payment of a $1,500
fine. Burnett timely filed a notice of appeal on March 26, 2009, and his counsel
subsequently filed a motion to withdraw pursuant to
Anders v. California
,
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(а). Although we conclude that counsel has not fulfilled the Anders brief requirements described in Third Circuit Local Appellate Rule 109.2(a), we find that there are no non- frivolous issues on appeal. Accordingly, wе will grant counsel’s motion to withdraw and affirm Burnett’s judgment of sentence.
II.
Because we write primarily for the parties, who are familiar with the factual context and legal history of this case, we discuss only those facts necessary to our decision. On October 10, 2008, after entering into a plea agreement with the government, *3 Burnett pled guilty to one count of “knowingly transport[ing] an[] individual in interstate . . . commerce . . . with intent that such individual engage in prostitution.” 18 U.S.C. § 2421. The pre-sentence report submitted by the United States Probation Office found that Burnett’s base offense level was 24, but recommended applying twо two-level enhancements. The first enhancement was recommended on the basis that the offense involved a commercial sex act, while the second enhancement was recommended pursuant to § 2G1.3(b)(3)(B) of the United States Sentencing Guidelines (“the Guidelines”), which provides for an upward adjustment “[i]f the offense involved the use of a computer or an interactive computer service to . . . entice, encourage, offer, or solicit a person to engage in prohibited sexual conduct with [a] minor.”
At sentencing, the district court heard testimony both from Burnett and from Federal Bureau of Investigation Special Agent Daniel Garrabrant. Garrabrant testified that he had interviewed a seventeen-year-old minor identified as A.M. A.M. told Garrabrant that, after meeting Burnett in Yonkers, New York, she “worked as a prostitute for him” in both New York City and Atlantic City, and that Burnett posted photographs of her on the website craigslist. According to Garrabrant, analysis of Burnett’s computer revealed that Burnett had accessed craigslist and had received replies to one or more postings regarding A.M., including responses that temporally “matche[d] weekends in which [A.M.] would have been in Atlantiс City.” Burnett, meanwhile, admitted to posting pictures of A.M. accompanied by his phone number on craigslist and to receiving *4 responses to those postings by e-mail and telephone. He stated, however, that he used only the New York City craigslist site, not the South Jersey site, because he found the latter “too broad” in geographic terms.
The district court concluded both that (1) Burnett’s testimony did not contradict Garrabrant’s view that the dates of the responses to the craigslists postings corresponded to the times A.M. was in Atlantic City, and (2) the text of § 2G1.3(b)(3)(B), as elaborated by an application notе, covered Burnett’s conduct. Accordingly, the district court applied a two-level enhancement pursuant to § 2G1.3(b)(3)(B). It did, however, determine that the government had not met its burden of proving that the adjustment for a commercial sex act applies.
After the application of a three-level reduction for acceptance of responsibility, the resulting Guidelines range for Burnett’s sеntence was 84 to 105 months in prison. Following an extended consideration of various sentencing factors, Judge Bumb sentenced Burnett to the upper end of that range – 105 months in prison – followed by fifteen years of supervised release.
III.
If a criminal defendant wishes to appeal, but counsel, after a thorough review of the record, cannot find any appealable issue, counsel mаy file what is known as an Anders brief. Local Appellate Rule 109.2(a) reflects this court’s implementation of Anders :
Where, upon review of the district court record, trial counsel is persuaded
that the aрpeal presents no issue of even arguable merit, trial counsel may
*5
file a motion to withdraw and supporting brief pursuant to
Anders v.
California
,
In assessing an
Anders
brief, we therefore must determine: “(1) whether counsel
adequately fulfilled the rule’s requirements; and (2) whether an independent review of the
record presents any non-frivolous issues.”
United States v. Youla
,
We first examine whether counsel fulfilled the requirements of Rule 109.2(a). As
Rule 109.2(a) reflects, “[t]he duties of counsel when preparing an
Anders
brief are (1) to
satisfy the court that counsel has thoroughly examined the record in search of appealable
issues, and (2) to explain why the issues are frivolous.”
Youla
,
In his
Anders
brief, Roland Jarvis, Burnett’s trial and appellate counsel, only
addresses the third of these three issues. More seriously, the
Anders
brief fails to discuss
the propriety of the § 2G1.3(b)(3)(B) enhancement, even though (1) the district court
*6
considered that issue at length, (2) Jarvis himself argued that the enhancement should not
apply, and (3) § 2G1.3(b)(3)(B) forms the sole basis for Burnett’s
pro se
brief on аppeal.
Because counsel overlooked this key issue, we are not convinced that he has “thoroughly
examined the record in search of appealable issues.”
Youla
,
Neverthеless, we will grant counsel’s motion to withdraw and affirm the judgment
of sentence imposed by the district court, because the “frivolousness [of the appeal] is
patent.”
United States v. Marvin
,
Finally, we consider the two challenges in Burnett’s
pro se
brief to the application
*7
of § 2G1.3(b)(3)(B). First, Burnett argues that the district court erred in concluding that
his craigslist postings were related to A.M.’s trips to Atlantic City. We review this
factual determination for clear error,
United States v. Grier
,
Second, Burnett argues that the two-level enhancement does not apply because,
according to Application Note 4 to § 2G1.3, “[s]ubsection (b)(3) is intended to apply only
to the use of a computer . . . to communicate directly with a minor or with a person who
exercises custody, care, or supervisory control of the minor.” Although Burnett asserts
that no such direct communication took place, we find it inarguable that, at the time he
made the craigslist postings, Burnett exercised a type of “supervisory control” over A.M.
Certainly, the individuals who responded to the postings must have believed so,
see
United States v. Vance
,
Having found no issue of arguable merit, we will grant counsel’s motion to withdraw and affirm Burnett’s judgment of sentence.
Notes
[*] Honorable Louis H. Pollak, Senior Judge of the United States District Court for the Eastern District of Pennsylvania, sitting by designation.
[1] Counsel’s failure to discuss this issue may result from the fact that Burnett entered into a plea agreement containing a waiver of appeal. It appears from the rеcord that the waiver may not cover this appeal, however, and even if counsel believes otherwise, that belief should be reflected in the Anders brief.
[2]
United States v. Patterson
,