United States of America v. Matthew A. Layton

Honorable John R. Padova, Senior Judge of the United States District Court for the*
Eastern District of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2139
UNITED STATES OF AMERICA
v.
MATTHEW A. LAYTON,
Appellant
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 08-cr-00142-001)
District Judge: Honorable Joseph J. Farnan, Jr.
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
on January 26, 2010
Before: RENDELL and JORDAN, Circuit Judges,
and PADOVA, Senior District Judge*
(Filed: February 23, 2010 )

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_______________
OPINION OF THE COURT
_______________
PADOVA, Senior District Judge.
Appellant Matthew A. Layton pled guilty to a charge of felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and was sentenced to
72 months’ imprisonment. He subsequently filed a notice of appeal, and defense counsel
moved to withdraw as appellate counsel, filing a brief pursuant to Anders v. California,
386 U.S. 738 (1967). Appellant has exercised his right to file a pro se brief, which raises
two issues, a challenge to the reasonableness of the sentence and an ineffectiveness of
counsel claim. For the following reasons, we will grant defense counsel leave to
withdraw and affirm the judgment of the District Court.
I.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a). We exercise plenary review to determine whether there are any nonfrivolous
issues on appeal. Penson v. Ohio, 488 U.S. 75, 80 (1988). The determination of
frivolousness is informed by the standard of review for each potential claim raised. See,
e.g., United States v. Schuh, 289 F.3d 968, 974-76 (7th Cir. 2002).

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II.
As we write exclusively for the parties, who are familiar with the factual context
and legal history of this case, we will set forth only select background facts. At
approximately 1:00 a.m. on August 10, 2008, Appellant arrived, uninvited, at a
community cook-out in Felton, Delaware. Appellant was drunk and belligerant, and was
asked to leave. He and several party guests got into an argument, and Appellant stepped
towards one of the guests, who pushed him away. Appellant removed from his belt line a
loaded .45 caliber semi-automatic pistol and fired the gun three times into the air. An
off-duty police officer rushed Appellant, choked him unconscious and took the gun.
Appellant left the party when he regained consciousness, and he was arrested the next
day.
On December 1, 2009, Appellant pled guilty to a one count indictment, charging
him with the offense of felon in possession of a firearm. In the Presentence Report,
Probation calculated that Appellant had a base offense level of 20 pursuant to U.S.S.G.
§ 2K2.1(a)(4)(A), because he had committed the instant offense subsequent to a felony
conviction for a crime of violence, i.e., a conviction of aggravated menacing in 2006.
Probation next applied a four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6),
reasoning that Appellant possessed the firearm in connection with another felony offense,
i.e., first degree reckless endangering. Probation also applied a three-level reduction for
acceptance of responsibility, resulting in a total offense level of 21. Probation calculated

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Appellant’s Criminal History category as III based on his prior criminal conduct. As a
result, according to Probation, Appellant’s advisory Sentencing Guideline range was
46-57 months.
At the sentencing hearing on April 8, 2009, Appellant objected to Probation’s
recommended four-level enhancement, and the Government agreed with Appellant that
the enhancement was not warranted. The Court granted Appellant’s objection, leaving
Appellant with a total offense level of 17 instead of 21. The total offense level of 17,
combined with Appellant’s Criminal History Category of III, resulted in an advisory
Sentencing Guideline range of 30 to 37 months. The Court, however, varied upwards
upon consideration of the § 3553(a) factors, and imposed a sentence of 72 months of
imprisonment. Among other things, the Court noted that Appellant came from a good
family and yet, from age 12 to age 20, had repeated contacts with the criminal justice
system, demonstrating an inability to comply with the rules of society. The Court further
emphasized that Appellant’s conduct in shooting a gun at a community party was very
serious and stated that an above-guideline sentence was necessary to protect the public.
Appellant timely filed this appeal.
III.
Our role in analyzing an Anders brief is twofold. First, we determine whether the
Anders brief is adequate on its face. United States v. Youla, 241 F.3d 296, 300 (3d Cir.
2001). Second, we determine whether an independent review of the record reveals any

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The District Court clearly had jurisdiction over Appellant’s crimes, because he was1
charged with violating 18 U.S.C. §§ 922(g)(1) and 924(a)(2), which are criminal offenses
against the laws of the United States. See 18 U.S.C. § 3231. In addition, the record
shows that the District Court thoroughly colloquied Appellant before accepting his plea,
as required by Fed. R. Crim. P. 11(b) and Boykin v. Alabama, 395 U.S. 238 (1969). The
Court informed Appellant of the nature of the charges against him, the rights he forfeited
by pleading guilty, the maximum penalties permitted for his offenses, the advisory nature
of the Sentencing Guidelines, and the factual basis for his guilty plea. See United States
v. Schweitzer, 454 F.3d 197, 202 (3d Cir. 2006). Looking at the totality of the
circumstances surrounding Appellant’s plea, it is therefore plain that Appellant
voluntarily and knowingly pled guilty and any claim to the contrary would be patently
frivolous.
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issues that are not frivolous. Id. An adequate Anders brief “satisf[ies] the court that
counsel has thoroughly examined the record in search of appealable issues,” and
“explain[s] why the issues are frivolous.” Id. (citing United States v. Marvin, 211 F.3d
778, 780 (3d Cir. 2000)). “Counsel need not raise and reject every possible claim.
However, at a minimum, he or she must meet the ‘conscientious examination’ standard
set forth in Anders.” Id. (citing Marvin, 211 F.3d at 780). We find Counsel’s Anders
brief to be adequate on its face. Where, as here, an appellant has pled guilty, there are
three general issues still open for appeal: (1) the district court’s jurisdiction to enter the
conviction and impose sentence; (2) the validity or voluntariness of Appellant’s guilty
plea; and (3) the legality of Appellant’s sentence. United States v. Broce, 488 U.S. 563,
569 (1989); 18 U.S.C. § 3742(a). Although Counsel addressed only the third of these
three issues, we conclude that it was unnecessary to address the other two issues because
they are patently frivolous. See Marvin, 211 F.3d at 781.1

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With respect to the legality of Appellant’s sentence, we agree with Counsel that
any issues are frivolous because Appellant’s sentence is both below the statutory
maximum and reasonable. In his pro se brief, Appellant concedes that the District Court
properly calculated the Guideline sentencing range and does not contend that his sentence
exceeded any statutory maximum. He argues, however, that his sentence is substantively
unreasonable because he did not place anyone in fear of imminent physical injury, comes
from a good family background, has held full time jobs, and is less of a criminal than
others in prison.
We “‘review the substantive reasonableness of the sentence under an
abuse-of-discretion standard, regardless of whether it falls within the Guidelines range.’”
United States v. Sevilla, 541 F.3d 226, 230 (3d Cir. 2008) (quoting United States v. Wise,
515 F.3d 207, 218 (3d Cir. 2008), and citing Gall v. United States, 552 U.S. 38, 51
(2007)). Ultimately, “[t]o determine whether a sentence is reasonable, the court must
examine ‘whether the record as a whole reflects rational and meaningful consideration of
the factors enumerated in 18 U.S.C. § 3553(a).’” United States v. Goff, 501 F.3d 250, 254
(3d Cir. 2007) (quoting United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en
banc)) (additional citation omitted). We must affirm the sentence as long as it “falls
within the broad range of possible sentences that can be considered reasonable in light of
the § 3553(a) factors.” Wise, 515 F.3d at 218 (citation omitted).

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Here, it is plain that the District Court gave rational and meaningful consideration
to the § 3553(a) factors, and arrived at a sentence that falls within the broad range of
possible sentences that can be considered reasonable. While Appellant maintains that the
Court did not properly weigh his family and employment history and the nature of the
offense, the sentencing transcript makes clear that the Court carefully considered those
factors along with the other § 3553(a) factors and clearly explained why he imposed an
above-Guidelines sentence. (A52-A55.) Accordingly, Counsel correctly concluded that a
challenge to the reasonableness of Appellant’s sentence would be frivolous and
Appellant’s pro se arguments are meritless.
IV.
In his pro se brief, Appellant raises one additional issue that was not addressed by
Counsel in the Anders brief, i.e., that Counsel was ineffective for addressing his criminal
history and substance abuse problems at sentencing. As a general matter, “Sixth
Amendment claims of ineffective assistance of counsel should . . . be raised in a collateral
proceeding pursuant to 28 U.S.C. § 2255 rather than on direct appeal.” United States v.
Jake, 281 F.3d 123, 132 n.7 (3d Cir. 2002) (citations omitted). “The rationale underlying
this preferred policy is that oft-times such claims involve allegations and evidence that are
either absent from or not readily apparent on the record.” United States v. Gambino,
788 F.2d 938, 950 (3d Cir. 1986). Accordingly, “[i]t has long been the practice of this
court to defer the issue of ineffectiveness of trial counsel to a collateral attack.

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Nonetheless, we have held that we may address the claim of ineffective assistance of
counsel on direct appeal when the record is sufficient to allow determination of the
issue.” United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003) (citations omitted).
Appellant, being pro se, does not explicitly argue that the exception to the ordinary
practice of deferral applies in this case. However, the record is sufficient to allow
determination of the issue he raises and, thus, we will reach the issue and conclude that
the ineffectiveness claim is meritless.
In order to prove that counsel rendered ineffective assistance under the Strickland
test, an appellant must establish that counsel’s representation was below an objective
standard of reasonableness, and that the substandard performance prejudiced the
appellant. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Appellant concedes
that Counsel did a “fair job” of representing him at sentencing. However, he complains
that Counsel commented too extensively regarding his criminal history and wrongfully
attributed that criminal history to anger issues and substance abuse when, in his view, his
current crime was simply the “act of a hot headed kid,” who would have been adequately
punished with a sentence of 37 months.
However, contrary to Appellant’s suggestion, defense counsel did not unilaterally
alert the Court to Appellant’s criminal history; the Presentence Report had already
exhaustively detailed Appellant’s criminal past. Thus, it was certainly reasonable for
Counsel to address Appellant’s extensive history at sentencing and to attempt to explain

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that the prior criminal conduct was, at least in part, the result of anger management and
substance abuse issues, which, according to Counsel, Appellant was actively addressing.
Likewise, Counsel plainly discussed Appellant’s prior probationary sentences not to
highlight those sentences, but to point out that Appellant was largely compliant while on
probation and, as such, had demonstrated that he has the ability to conform to societal
rules.
While Appellant apparently disagrees with Counsel’s strategy in this regard, “[i]n
evaluating counsel’s performance, [the Court is] ‘highly deferential’ and ‘indulge[s] a
strong presumption’ that, under the circumstances, counsel’s challenged actions might be
considered sound . . . strategy.” Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999)
(quoting Strickland, 466 U.S. at 689). Indeed, “Strickland and its progeny make clear that
counsel’s strategic choices will not be second-guessed by post-hoc determinations that a
different . . . strategy would have fared better.” Rolan v. Vaughn, 445 F.3d 671, 681-82
(3d Cir. 2006) (citing Strickland, 466 U.S. at 689).
In this case, Counsel’s challenged conduct did not fall below an objective standard
of reasonableness but, rather, was a reasonable strategy to attempt to minimize the
potentially damaging effect of Appellant’s 8-year failure to conform to societal rules.
Accordingly, Appellant’s ineffectiveness claim is meritless as he cannot satisfy the first
prong of the Strickland test.

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V.
For the foregoing reasons, we conclude that Counsel has fulfilled his obligation
under Anders and the Local Appellate Rules to provide an adequate no-merit brief, and
our independent review of the record yields no nonfrivolous issues for appeal. In
addition, Appellant’s ineffectiveness claim is meritless.
In light of the foregoing, we will AFFIRM the Judgment and Commitment Order
of the District Court and, in a separate order, grant Counsel’s motion to withdraw.

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