United States of America v. Kemyah R. Washington

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4181
UNITED STATES OF AMERICA
v.
KEMYAH R. WASHINGTON,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 1-07-cr-00401-001)
District Judge: Honorable Sylvia H. Rambo
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 16, 2009
Before: FISHER, HARDIMAN, and VAN ANTWERPEN, Circuit Judges.
(Filed: December 16, 2009)
OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Appellant Kemyah R. Washington’s counsel has filed a motion to withdraw as
counsel pursuant to Anders v. California, 386 U.S. 738 (1967). Washington has filed
informal and supplemental pro se briefs in opposition to his counsel’s motion, and the

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United States has filed a brief in support of counsel’s motion. Because Washington’s
counsel has complied with his duties under Anders and because this Court is satisfied
there are no non-frivolous issues for direct appeal, we will grant counsel’s motion to
withdraw and dismiss the appeal.
I.
Because we write solely for the parties, we will address only those facts necessary
to our opinion.
On April 7, 2008, Washington was charged in a one-count information with
violating 21 U.S.C. § 841(a) for the intentional and knowing possession of, with intent to
distribute, cocaine base. On the same date, Washington entered into a plea agreement
with the United States under which he waived his right to a grand jury indictment and
agreed to plead guilty to the information. The plea agreement advised Washington that
the maximum imprisonment for violating § 841(a) is twenty years.
On April 24, 2008, Washington appeared before the District Court to change his
plea to guilty. At this hearing, Judge Rambo conducted a thorough colloquy, explaining
to Washington his trial rights and that he would be waiving those rights. After
Washington admitted to committing the acts as the government charged, Judge Rambo
concluded that Washington’s plea was voluntary and had a basis in fact for all elements
of the charge. Consequently, the District Court accepted Washington’s guilty plea.
On August 6, 2008, Washington appeared before the District Court for sentencing.

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Third Circuit Local Appellate Rule 109.2(a) provides, in relevant part:1
“Where, upon review of the district court record, counsel is persuaded that the
appeal presents no issue of even arguable merit, counsel may file a motion to
withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738
(1967) . . . . If the panel agrees that the appeal is without merit, it will grant
counsel’s Anders motion, and dispose of the appeal without appointing new
counsel. If the 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. The
panel will also determine whether to continue the appointment of current
3
After addressing Washington’s objections to the Presentence Investigation Report, the
District Court heard argument from the parties and testimony from Washington’s
character witnesses. The court imposed a sentence of 175-months’ imprisonment, three
years of supervised release, a $500 fine, a $500 order of community restitution, and a
$100 special assessment. Judge Rambo declined the parties’ request for a downward
departure for Washington’s cooperation and declined Washington’s request for a
downward variance based on his “character as of th[e sentencing] date.”
II.
The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. This
Court has appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We
exercise plenary review over an Anders motion. See Penson v. Ohio, 488 U.S. 75, 82-83
& n.6 (1988).
Under Anders, our inquiry is two-fold: (1) whether counsel adequately fulfilled the
requirements of Third Circuit Local Appellate Rule 109.2(a), and (2) whether an1

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counsel or to direct the clerk to discharge current counsel and appoint new
counsel.”
3d Cir. L.A.R. 109.2(a) (2008).
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independent review of the record presents any non-frivolous issues. United States v.
Coleman, 575 F.3d 316, 319 (3d Cir. 2009). Thus, Washington’s counsel must satisfy us
that he has thoroughly scoured the record in search of appealable issues and then must
explain why those issues are frivolous. Id. Where the Anders brief initially appears
adequate on its face, the proper course is for the appellate court to be guided in reviewing
the record by the Anders brief itself. See United States v. Youla, 241 F.3d 296, 301 (3d
Cir. 2001) (dicta). If it is adequate, we confine our review to those portions of the record
identified in the Anders brief, as well as issues raised in a defendant’s pro se brief. Id.
III.
Following an unconditional guilty plea, a defendant is limited to only three
appealable issues: (1) the district court’s jurisdiction, (2) the validity of his or her plea,
and (3) the reasonableness and legality of his or her sentence. See Menna v. New York,
423 U.S. 61, 62 n.2, 63 (1975) (per curiam) (concluding that valid guilty plea waives
preceding constitutional errors, unless related to court’s power to “hal[e] a defendant into
court on a charge”); 18 U.S.C. § 3742(a) (granting appellate court’s authority to review
sentences); see also United States v. Broce, 488 U.S. 563, 569 (1989) (holding that
following unconditional guilty plea, defendant may only collaterally attack validity of
plea and court’s power to enter conviction or impose sentence).

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Washington’s counsel correctly identified these three issues in his Anders brief. In
concluding that Washington had no non-frivolous arguments for these issues, counsel
recognized applicable precedent, made arguments, and cited to the record to support the
arguments that these issues were not meritorious. Accordingly, this Court is satisfied that
counsel’s Anders brief is adequate on its face and, therefore, we constrain our review of
the record to those portions identified in the Anders brief and Washington’s pro se briefs.
We agree that none of these three issues raises a non-frivolous argument. Both
counsel and the United States argue that the District Court had jurisdiction under 18
U.S.C. § 3231. We agree.
Counsel and the United States also argue that Washington’s plea was valid. After
a review of the District’s Court’s thorough colloquy with Washington at the change of
plea hearing, we concur.
Furthermore, we find that the sentence imposed by the District Court was legal and
reasonable and, therefore, this issue presents no meritorious argument. This Court
engages in a procedural and substantive review of sentences. See United States v.
Lessner, 498 F.3d 185, 203 (3d Cir. 2007). Procedurally, the District Court must (1)
correctly calculate the applicable Sentencing Guidelines range; (2) formally rule on the
motions of both parties and state on the record whether the court is granting a departure
and how that departure effects the guidelines range; and (3) consider all of the factors

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These factors include: (1) the nature and circumstances of the offense and the2
defendant’s history; (2) the need to reflect the seriousness of the crime and to adequately
deter criminal conduct; (3) the available sentences; (4) the established sentencing range;
(5) any pertinent sentencing policies; (6) the need to avoid sentencing disparities; and (7)
the need to provide restitution to victims. 18 U.S.C. § 3553(a)(1)-(7).
Washington bears the burden of demonstrating unreasonableness. United States v.3
Cooper, 437 F.3d 324, 332 (3d Cir. 2006). We review the District Court’s sentence for
an abuse of discretion. See Gall v. United States, 552 U.S. 38, 41 (2007). This Court
asks whether the final sentence was premised on appropriate judicious consideration of
the relevant factors. United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006).
There is no presumption of reasonableness even if the sentence is within the Guidelines
range. Cooper, 437 F.3d at 329-30, 331-32.
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under 18 U.S.C. § 3553(a) and adequately explain the chosen sentence in a manner that2
allows for meaningful appellate court review of the reasonableness of the sentence. See
Gall v. United States, 552 U.S. 38, 49-50 (2007); United States v. Gunter, 462 F.3d 237,
247 (3d Cir. 2006).
Substantively, we must be satisfied that the District Court exercised its discretion
by considering the relevant § 3553(a) factors and we must also ascertain whether those
factors were reasonably applied to the circumstances of the case. See United States v.3
Cooper, 437 F.3d 324, 329-30 (3d Cir. 2006). It is clear to us from the record that the
District Court followed the procedural guidelines and gave more than meaningful
consideration to the relevant § 3553(a) factors. Moreover, the court did not abuse its
discretion by imposing a sentence of 175-months’ imprisonment, which is within the
applicable range. Thus, we conclude that the sentence was legal and reasonable.
Having concluded that the three issues correctly raised in counsel’s adequate

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Anders brief are frivolous, we turn to those Washington raises in his pro se briefs. See
Youla, 241 F.3d at 301. Washington argues error because (1) of the ineffective assistance
of his trial counsel for failure to file a motion to suppress; (2) he was not advised he could
be considered a “career offender” for sentencing purposes until after he entered his plea;
(3) he is “not guilty”; and (4) the district court lacked jurisdiction to impose a sentence in
light of the government’s failure to file a notice pursuant to 21 U.S.C. § 851. None of
these claims has arguable merit.
“It has long been the practice of this [C]ourt to defer the issue of ineffectiveness of
trial counsel to a collateral attack.” United States v. Thornton, 327 F.3d 268, 271 (3d Cir.
2003). This principle applies unless the record is sufficient to allow for determination of
the issue. Id. The record in this case is clearly not sufficient to determine whether
Washington’s counsel was ineffective for failure to file a motion to suppress. Therefore,
this claim is frivolous.
Washington’s claim that he was not advised of his status as a career offender does
not raise a non-frivolous issue for appeal. Washington was advised in the plea agreement
and at the change of plea hearing that his offense carried a twenty-year maximum
sentence. Moreover, his sentence was legal and reasonable. And regardless of
Washington’s understanding prior to sentencing, the District Court advised Washington,
and he acknowledged his understanding, that the court was not bound by any guideline
estimates. Further, to the extent this issue states a claim for ineffectiveness, it is frivolous

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on direct appeal. See Thornton, 327 F.3d at 271.
Washington’s claim that he is “not guilty” because he was not in possession of
drugs and was not a resident of the house where the drugs were located is belied by his
sworn testimony at the change of plea hearing. He acknowledged ownership of the drugs,
that he intended to sell them, and that he did sell them to an undercover agent and a
confidential informant. Moreover, Washington offered no additional evidence to indicate
he is not guilty. Therefore, this claim has no merit.
Finally, Washington’s claim that his sentence is illegal because of the
government’s failure to file a § 851 notice is frivolous. The notice is required only if the
government seeks a sentence beyond the statutory maximum, and is not required if the
government requests the court to sentence the defendant as a career offender under U.S.
Sentencing Guidelines Manual § 4B1.1. United States v. Day, 969 F.2d 39, 48 (3d Cir.
1992). Because Washington was sentenced within the statutory maximum of twenty
years and the government sought enhancement only because of Washington’s career
offender status, the § 851 notice was not required and this argument is frivolous.
IV.
We conclude that Washington’s counsel has satisfied his obligations under Anders
and we grant his motion to withdraw. Because Washington’s appeal presents no
meritorious arguments, we dismiss his appeal.

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