United States of America v. David Anthony Somerville, also known as Charles Payne also known as Midnite

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 24-1571
_____________
UNITED STATES OF AMERICA,
v.
DAVID ANTHONY SOMERVILLE,
also known as Charles Payne
also known as Midnite,
Appellant
_____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2:17-cr-00222-001)
District Judge: Honorable Nora B. Fischer
_____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
July 8, 2025
_____________
Before: KRAUSE, MATEY, and PHIPPS, Circuit Judges
(Filed: August 20, 2025)
_____________
OPINION*
_____________
*This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.

-- 1 of 3 --

2
MATEY, Circuit Judge.
David Somerville appeals his sentence for a pair of controlled substance offenses.
Our review of the record reveals no nonfrivolous issues for appeal, so we will grant
counsel’s motion to withdraw and affirm.1 See Anders v. California, 386 U.S. 738, 744
(1967).2
First, the District Court’s exercise of jurisdiction over Somerville for his “offenses
against the laws of the United States” was proper under 18 U.S.C. § 3231. Also proper
was the District Court’s decision to deny Somerville’s motion to withdraw his plea
agreement because Somerville did not meet his “substantial” burden to identify a “fair
and just” reason to withdraw the plea. See United States v. Jones, 336 F.3d 245, 252 (3d
Cir. 2003).
1 The District Court had jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction under 28 U.S.C. § 1291. We exercise plenary review in determining whether
there are any nonfrivolous issues for appeal. Simon v. Gov’t of V.I., 679 F.3d 109, 114
(3d Cir. 2012). We only consider arguments that Somerville could have raised concerning
his controlled substance offenses because he did not appeal his separate 180-day prison
sentence for violating the terms of his supervised release. But because Somerville’s
notice of appeal references “appeals,” we note that any appeal of his 180-day sentence
would have been moot. See United States v. Huff, 703 F.3d 609, 611–12 (3d Cir. 2013).
2 We reach this conclusion based on our independent review of the record, as
assisted by the United States’ commendably thorough brief. Unfortunately, Somerville’s
counsel has not satisfied us that he “thoroughly examined the record in search of
appealable issues.” United States v. Langley, 52 F.4th 564, 569 (3d Cir. 2022). But that
does not alter our conclusion about the nature of Somerville’s appeal because “‘in those
cases in which frivolousness is patent,’ we will not appoint new counsel even if
an Anders brief is insufficient to discharge current counsel’s obligations to his or her
client and this court.” United States v. Coleman, 575 F.3d 316, 321 (3d Cir. 2009)
(quoting United States v. Marvin, 211 F.3d 778, 781 (3d Cir. 2000)).

-- 2 of 3 --

3
Additionally, the District Court properly rejected Somerville’s request for a
two-level reduction available in cases where “the defendant clearly demonstrates
acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). Somerville only
changed his plea after the United States presented its case in chief and the strength of its
evidence was readily apparent. Moreover, he tested positive for marijuana (at least three
separate times) and cocaine while on bond, and “[c]ourts have routinely upheld the denial
of a § 3E1.1(a) adjustment for similar or less culpable post-plea conduct.” United States
v. Mercado, 81 F.4th 352, 361 (3d Cir. 2023).
Finally, the District Court correctly calculated Somerville’s advisory guidelines
range; considered his argument for a variance; and evaluated the 18 U.S.C. § 3553(a)
factors, making the sentence procedurally reasonable. See United States v. Merced, 603
F.3d 203, 215 (3d Cir. 2010). And the sentence is also substantively reasonable, as it
cannot be said that “no reasonable sentencing court would have imposed the same
sentence.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).
* * *
Seeing no nonfrivolous arguments that Somerville could have made, we will grant
counsel’s motion to withdraw and affirm.

-- 3 of 3 --