United States of America v. Trenell J. Coleman

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3155
UNITED STATES OF AMERICA
v.
TRENELL J. COLEMAN,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-02-cr-00320-003)
District Judge: Honorable Anne E. Thompson
Submitted Under Third Circuit LAR 34.1(a)
July 10, 2009
Before: SLOVITER, AMBRO, and JORDAN, Circuit Judges
(Filed: July 31, 2009 )
_____
Trenell J. Coleman, Pro Se
Allenwood USP
White Deer, PA l7887-0000
John M. Holliday, Esq.
Suite 207
2273 State Highway 33
Trenton, NJ 08690
Attorney for Appellant

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George S. Leone
Samuel A. Stern
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102-0000
Attorneys for Appellee
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Appellant Trenell J. Coleman was convicted by a jury of a
Hobbs Act conspiracy to commit bank robberies in violation of
18 U.S.C. § 1951 (Count 1), attempted bank robbery in violation
of 18 U.S.C. § 2113 (Count 3), two counts of use of a firearm
during the commission of a crime of violence in violation of 18
U.S.C. § 924(c) (Counts 2 and 4), and possession of a firearm by
a convicted felon in violation of 18 U.S.C. § 922(g) (Count 6).
Coleman was then sentenced to 572 months imprisonment.
On appeal to this court, we affirmed Coleman’s
conviction but vacated his sentence and remanded for
resentencing in light of the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220 (2005). Notwithstanding our
remand, we also held that the District Court properly imposed
both a seven-year mandatory-consecutive sentence on Count 2
and a twenty-five year mandatory-consecutive sentence on Count
4 because those sentences were required by the terms of §
924(c). See United States v. Goggans, F. App’x 515, 518 (3d
Cir. 2007). On remand, the District Court imposed a sentence of
444 months imprisonment.
Coleman’s counsel, who filed a timely notice of appeal,
has filed a motion to withdraw as counsel and a brief in support
of that motion pursuant to Anders v. California, 386 U.S. 738,

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744 (1967). Coleman has filed a pro se brief in opposition to his
counsel’s Anders motion. The government has also filed a brief
supporting counsel’s Anders motion.
I.
Coleman and co-defendants Lacy Goggans, Ronald
Blackwell, and Ryan Washington conspired to rob nine banks in
New Jersey between 2000 and 2002. Coleman was armed with,
and brandished, a firearm during the robberies. The conspirators
also attempted to rob the Roma Federal Savings Bank in
Trenton, New Jersey, on April 16, 2002, which they aborted.
During their flight, Coleman was arrested while in possession of
a firearm.
As noted above, Coleman was convicted by a jury of
conspiracy to commit bank robbery under the Hobbs Act,
attempted bank robbery, two counts of use of a firearm during a
crime of violence, and possession of a firearm by a felon. We
previously affirmed that conviction. Goggans, 257 F. App’x at
517. Thus, the only issue before us is whether the District Court
properly resentenced Coleman after we remanded the case in
light of Booker.
On remand, the District Court determined, as it had
during Coleman’s initial sentencing and as we approved in our
opinion on his first appeal, that it was required to impose a
seven-year consecutive sentence on Count 2, which involved a
violation of 18 U.S.C. § 924(c)(1)(A)(ii) for brandishing a
weapon during the bank robberies underlying the Hobbs Act
conspiracy, and a twenty-five-year consecutive sentence on
Count 4, which involved a violation of 18 U.S.C. §
924(c)(1)(C)(i) for use of a firearm during the attempted bank
robbery. The Court also concluded that it was required to
impose a ten-year consecutive sentence on Count 6 for
possession of a firearm by a felon.
On the Hobbs Act conspiracy (Count 1) and the attempted
bank robbery (Count 3), the District Court weighed the
seriousness of the offenses, Coleman’s criminal history, his role

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in the offenses, his relative youth at the time of the offenses, his
positive post-conviction conduct, and the length of the
mandatory sentences on the weapons offenses, and determined
that concurrent sentences of sixty months imprisonment on each
count were appropriate. Thus, the Court imposed a total
sentence of 444 months imprisonment. Counsel for Coleman
filed a timely appeal.
II.
Under Anders, appellant’s counsel must “satisfy the court
that he or she has thoroughly scoured the record in search of
appealable issues” and then “explain why the issues are
frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.
2000) (citation omitted.). “The Court’s inquiry when counsel
submits an Anders brief is thus twofold: (1) whether counsel
adequately fulfilled [Third Circuit Local Appellate Rule 109.2’s]
requirements; and (2) whether an independent review of the
record presents any nonfrivolous issues.” United States v. Youla,
241 F.3d 296, 300 (3d Cir. 2001).
Coleman’s counsel contends that there are no non-
frivolous issues for review on appeal. However, counsel limits
his discussion to the District Court’s compliance with Federal
Rule of Criminal Procedure 32, which governs the procedural
requirements for sentencing.
We are troubled by counsel’s failure to address any issue
other than the District Court’s compliance with Rule 32. First,
Coleman’s counsel does not mention the argument raised by
Coleman in his pro se brief to assure us that he has found it to
lack merit. See Marvin, 211 F.3d at 781 (rejecting Anders
motion because, inter alia, counsel failed to address issues raised
in client’s pro se brief). Further, despite the fact that this court
previously remanded Coleman’s case for resentencing,
Coleman’s counsel does not even allude to the question whether
Coleman’s new sentence is reasonable under Booker and its
progeny. Certainly not every Anders brief need include a
challenge to the reasonableness of the sentence, especially when
the pro se appellant does not raise the issue, but here it was the

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court that raised the issue.
We emphasize that counsel need not press frivolous
arguments on appeal, but the failure to address legal challenges
raised by Coleman and the failure to fully address the very issue
for which we remanded this matter cause us to question whether
Coleman’s counsel conducted the required “conscientious
examination” of the record. Anders, 386 U.S. at 744. Thus, we
must decide whether we should appoint new counsel or take
some other step to ensure that Coleman receives adequate
representation.
We believe that our resolution of this matter is guided by
the Supreme Court’s recent instructions to this court regarding
an Anders motion in Bennett v. United States, 128 S. Ct. 2423
(2008). After Bennett was convicted of possession of crack and
powder cocaine and sentenced to 240 months imprisonment, his
counsel filed a notice of appeal and sought to withdraw from the
case pursuant to Anders. United States v. Bennett, 219 F. App’x
265, 266 (3d Cir. 2007). Bennett filed a pro se brief in which he
noted that the district court erred by imposing a recidivist
enhancement to his sentence based on a prior conviction that
remained subject to direct review; Bennett’s counsel failed to
present this argument or explain why it was frivolous. Id. at
266-67. However, even the government conceded that the
district court’s imposition of the enhancement was plain error.
Id. Rather than order the appointment of new counsel, we
granted counsel’s motion to withdraw and affirmed Bennett’s
conviction, vacated his sentence, and remanded the case to the
district court. Id. at 267.
Bennett petitioned for certiorari to the Supreme Court,
alleging that our decision infringed his right to appellate counsel.
The Court granted a writ of certiorari, vacated the judgment, and
remanded the case to this court “for further consideration in light
of the position asserted by the Solicitor General in his brief for
the United States.” Bennett, 128 S. Ct. at 2423. In that brief, the
government contended that our decision was inconsistent with

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We note that the government had not cited Penson in its1
brief to this court.
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Penson v. Ohio, 488 U.S. 75 (1988). Brief for the United States1
at 9-10, Bennett v. United States, 128 S. Ct. 2423 (2008) (No.
07-8178).
In Penson, after Penson and two codefendants were
convicted of several crimes in Ohio state court, his counsel filed
a notice of appeal. Penson, 488 U.S. at 77. Counsel also filed a
brief document with the Montgomery County, Ohio, Court of
Appeals (the intermediate state appellate court) that stated only
that “he ha[d] carefully reviewed the within record on appeal,
[and] that he ha[d] found no errors requiring reversal,
modification and/or vacation of appellant’s jury trial convictions
and/or the trial court’s sentence.” Id. at 78. Thus, counsel
moved to withdraw. The Court of Appeals then issued an order
that granted counsel’s motion to withdraw and that also stated
that the court would “independently review the record
thoroughly to determine whether any error exists requiring
reversal or modification of the sentence.” Id. However, it
denied Penson’s requests for new counsel. Id. The court
eventually found “several arguable claims” and “concluded that
plain error had been committed in the jury instructions
concerning one count.” Id. at 79. Thus, it reversed Penson’s
sentence on that count but affirmed his conviction and sentence
on the remaining crimes. Id.
After Penson’s appeal was dismissed by the Ohio
Supreme Court, he petitioned to the United States Supreme
Court, which reversed. The Court concluded:
It is apparent that the Ohio Court of Appeals did not
follow the Anders procedures when it granted appellate
counsel’s motion to withdraw, and that it committed an
even more serious error when it failed to appoint new
counsel after finding that the record supported several
arguably meritorious grounds for reversal of petitioner’s
conviction and modification of his sentence. As a result,

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petitioner was left without constitutionally adequate
representation on appeal.
488 U.S. at 81. Thus, the Supreme Court found two errors that
combined to undermine Penson’s right to appellate counsel.
First, his counsel failed to file an appropriate Anders brief,
which therefore “left the Ohio court without an adequate basis
for determining that he had performed his duty carefully to
search the case for arguable error and also deprived the court of
the assistance of an advocate in its own review of the cold record
on appeal.” Id. at 82.
Further, “the Ohio court erred by failing to appoint new
counsel to represent petitioner after it had determined that the
record supported ‘several arguable claims.’” Id. at 83. That is,
“once a court determines that the trial record supports arguable
claims, . . . the criminal appellant is entitled to representation.”
Id. at 84.
According to the Solicitor General’s brief in Bennett,
Penson stands for the proposition that, where an appellate court
determines “both that petitioner’s appointed counsel had failed
to comply with the Anders procedure and that counsel’s
substantive representation (that there were no nonfrivolous
issues in the record . . .) was incorrect,” then “the correct
disposition [is] to appoint new counsel to review the record and
file either a merits brief or an Anders-compliant brief.” Brief for
the United States at 12, Bennett v. United States, 128 S. Ct. 2423
(2008) (No. 07-8178).
This conclusion is consistent with our decisions and Local
Rules implementing Anders. Under our Rules, if a panel “finds
arguable merit to the appeal, or that the Anders brief is
inadequate to assist the court in its review, it will appoint
substitute counsel, order supplemental briefing and restore the
case to the calendar.” 3d Cir. L.A.R. 109.2 (2008). It follows
that if a panel concludes that an appeal lacks arguable merit (i.e.,
is frivolous), then our Rules do not require appointment of new
counsel. Indeed, “in those cases in which frivolousness is
patent,” we will not appoint new counsel even if an Anders brief

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is insufficient to discharge current counsel’s obligations to his or
her client and this court. Marvin, 211 F.3d at 781; see also
Penson, 488 U.S. at 89 (O’Connor, J., concurring) (noting that
“nothing in the Court’s opinion forecloses the possibility that a
mere technical violation of [Anders] might be excusable” and
concluding that the violation in Penson “was not a mere
technical violation”).
Applying these principles here, we conclude that,
although the Anders brief filed by Coleman’s counsel was
deficient, the appeal is patently frivolous. Accordingly, this case
is distinguishable from Penson and Bennett.
Coleman, in his pro se filings with this court, contends
that “the ‘any crime of violence’ language in [18 U.S.C.] §
924(c) is ambiguous as to the allowable unit of prosecution, and
the imposition of a second mandatory-consecutive 25-year
sentence violates double jeopardy.” Coleman’s Reply to
Appellee’s Response to Counsel’s Anders Brief and Appellant’s
Pro Se Opposition at 4. However, Coleman raised and we
rejected that same argument in Coleman’s first appeal, Goggans,
257 F. App’x at 517, and that rejection binds us here. See In re
City of Philadelphia Litigation, 158 F.3d 711, 717-18 (3d Cir.
1998).
Indeed, as noted previously, the only issue properly
before us on this appeal is Coleman’s sentence following our
remand in his first appeal for re-sentencing in light of Booker.
We see no non-frivolous issues with regard to Coleman’s new
sentence. We agree with his counsel that the District Court
properly complied with the requirements of Federal Rule of
Criminal Procedure 32. The District Court also followed the
dictates of Booker and its progeny. It would have been helpful
for counsel to note that the Court correctly calculated Coleman’s
recommended sentencing range under the Guidelines, properly
determined that Coleman was subject to several statutory
mandatory minimum sentences, heard arguments from both
parties regarding an appropriate sentence on the remaining
counts, and extensively discussed the factors underlying its
sentence on the record. Moreover, the District Court exercised

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its discretion and granted a substantial downward departure from
Coleman’s initial sentence. Thus, we see no basis in the record
to conclude that the District Court abused its discretion. See
Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 594-97
(2007).
Finally, and notwithstanding our ultimate disposition of
this case, we remind appellate counsel who seek to withdraw
from representation to heed carefully the requirements of Anders
and our Local Rules implementing that decision. As Penson
recognized, “it is through counsel that all other rights of the
accused are protected.” 488 U.S. at 84. Indeed, “[t]he need for
forceful advocacy does not come to an abrupt halt as the legal
proceeding moves from the trial to appellate stage.” Id. at 85.
III.
For the above-stated reasons, we will grant counsel’s
motion to withdraw and affirm the sentence.

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