United States of America v. Frank Porter

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-2498
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UNITED STATES OF AMERICA
v.
FRANK PORTER,
Appellant
On Appeal From the United States District Court
for the District of New Jersey
(Criminal No. 2-00-cr-00568-1)
District Judge: Honorable Harold A. Ackerman
Submitted Under Third Circuit LAR 34.1(a)
May 29, 2009
Before: FISHER, CHAGARES, and COWEN, Circuit Judges.
(Filed: July 7, 2009)
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OPINION OF THE COURT
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CHAGARES, Circuit Judge.
Counsel for Frank Porter has moved, pursuant to Anders v. California, 386 U.S.

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The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has1
jurisdiction under 28 U.S.C. § 1291.
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738 (1967), for permission to withdraw as counsel in this case. For the reasons that
follow, we will grant the motion and affirm Porter’s conviction and sentence.1
I.
Because we write solely for the benefit of the parties, we will only briefly
summarize the essential facts.
On October 17, 2001, Porter was sentenced to, inter alia, fifty-five months of
imprisonment and three years supervised release. Porter began his term of supervised
release on March 14, 2005. The Government filed a petition on January 12, 2006,
alleging that Porter “violated the supervision condition [of his supervised release] which
states ‘You shall not commit another federal, state, or local crime.’” Appendix (“App.”)
27 (emphasis omitted). Porter pleaded not guilty to the allegation, and a hearing was
conducted on May 7, 2008. At the hearing, a probation officer testified that Porter
engaged in new criminal conduct, thus violating the terms of his supervised release. In
addition, the Government introduced a Judgment of Conviction from the Essex County
Superior Court, New Jersey, reflecting a conviction for aggravated manslaughter in the
first degree and unlawful possession of a weapon in the third degree. App. 9, 28.
At the conclusion of the hearing, the District Court found Porter guilty of violating
the terms and conditions of his supervised release. The defense requested that the District

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Court sentence Porter to a term of imprisonment to run concurrent with his State of New
Jersey prison term. The District Court declined to do so, and instead sentenced Porter to
24 months imprisonment -- the statutory maximum custodial term -- to run consecutive to
the New Jersey sentence. Porter filed a timely notice of appeal on May 16, 2008.
II.
Porter’s counsel petitions this Court to withdraw as attorney of record, arguing that
there are no non-frivolous issues that can be advanced on appeal. A copy of defense
counsel’s brief was furnished to Porter, and he was given thirty days to file a brief on his
own behalf. Porter declined to do so.
Evaluation of an Anders brief requires a twofold inquiry: (1) whether counsel has
thoroughly examined the record for appealable issues and has explained why any such
issues are frivolous, and (2) whether an independent review of the record presents any
non-frivolous issues. United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Where
the Anders brief appears adequate on its face, and the appellant has not submitted a pro se
brief, our review is limited to the portions of the record identified in the Anders brief.
See id. at 301. We conclude that the brief in this case is adequate, and thus, it will guide
our independent review of the record.
Porter’s counsel combed through the record and identified several issues that could
possibly be raised before us before concluding that they were all patently without merit.
Likewise, our independent review of “those portions of the record identified by [the]

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Anders brief” reveals no non-frivolous issues Porter might profitably raise on appeal. See
id. As Porter’s counsel points out, the District Court complied with the directives of
Federal Rules of Criminal Procedure 32.1(b)(2) and (c), and with 18 U.S.C. § 3583(c).
Specifically, the District Court conducted a hearing and properly concluded, by at least a
preponderance of the evidence, that Porter had violated a condition of his supervised
release. The District Court then afforded Porter the opportunity to make a statement prior
to the imposition of sentence, and considered counsel’s arguments in favor of imposing a
concurrent sentence. The District Court did not abuse its discretion in rejecting this
request and in imposing a consecutive sentence, and the ultimate sentence is reasonable.
Accordingly, we will grant counsel’s motion and will affirm Porter’s conviction
and sentence.

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