United States of America v. Ray Kelly

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-2242
_____________
UNITED STATES OF AMERICA,
Appellee,
v.
RAY KELLY,
Appellant.
______________
Appeal from the United States
District Court for the Western District of Pennsylvania
(No. 07-cr-00163)
District Court Judge: Honorable Alan N. Bloch
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
October 1, 2009
___________
Before: AMBRO, GARTH, and ROTH Circuit Judges
Opinion Filed October 21, 2009
___________
OPINION
___________
GARTH, Circuit Judge:

-- 1 of 8 --

-2-
David B. Chontos, Esq., counsel for defendant Ray Kelly in this case, submitted a
motion to withdraw as counsel and accompanying brief pursuant to Anders v. California,
386 U.S. 738 (1967) and Local Appellate Rule 109.2(a) because there are no non-
frivolous issues on appeal. Upon careful review of the brief and the record, we will grant
the motion and affirm the District Court’s judgment and sentence.
I.
In 2005, Kelly began serving a 70-month federal prison sentence imposed
following a conviction on narcotics charges. While incarcerated, Kelly continued to
arrange the distribution of large quantities of cocaine. This was accomplished largely
through a series of telephone calls from prison to his wife and two partners in the
narcotics business. Law enforcement officers monitored those calls, and connected them
with the June 15, 2006 seizure of $250,000 in cash from a mail facility in North
Huntingdon, Pennsylvania. Police later determined that the money had been sent from
one of Kelly’s co-conspirators to the other as payment for approximately fifteen
kilograms of cocaine. In subsequent telephone calls, Kelly discussed the seizure of the
money and the continuing viability of the enterprise. App. 38-42.
Kelly was indicted in June 2007, and pled guilty to conspiring to distribute, and to
possess with intent to distribute, at least five kilograms of cocaine. See 21 U.S.C. §
841(a)(1), 846. The District Court sentenced Kelly to 240 months of imprisonment, the
minimum term of imprisonment allowed by statute in light of Kelly’s prior felony drug

-- 2 of 8 --

Kelly’s sentence also included ten years of supervised release and a $100 special1
assessment.
Just before the disposition date of this appeal, Kelly filed a motion to submit a pro2
se reply brief out of time. We granted the motion and accepted the pro se brief for filing.
After consideration of the arguments made in Kelly’s brief, we find them to be without
merit.
Kelly’s double jeopardy claim is barred by his guilty plea. United States v. Broce,
488 U.S. 563, 571 (1989). To the extent that he argues his plea was the result of
ineffective assistance of counsel, the claim must be presented in a motion under 28
U.S.C. § 2255 rather than on direct appeal. United States v. Morena, 547 F.3d 191, 198
(3d Cir. 2008).
Kelly’s arguments regarding his sentence are baseless. A twenty-year mandatory
minimum sentence applied to Kelly because the amount of cocaine involved in the
offense exceeded five kilograms, and Kelly had a prior felony drug conviction. 21
U.S.C. § 841(b)(1)(A).
We have jurisdiction over the appeal under 28 U.S.C. §1291 and 18 U.S.C. §3
3742(a). The District Court had jurisdiction under 18 U.S.C. § 3231.
-3-
conviction. See 21 U.S.C. § 841(b)(1)(A). Kelly appealed, and his counsel filed a1
motion to withdraw and accompanying Anders brief. Kelly filed an informal pro se reply
brief.2
II.
Our task in ruling on a motion to withdraw pursuant to Anders is twofold. We ask3
(1) whether counsel adequately fulfilled the requirements of 3d Cir. L.A.R. 109.2; and (2)
whether an independent review of the record reveals any non-frivolous issues meriting
consideration. United States v. Coleman, 575 F.3d 316, 319 (3d Cir. 2009). To satisfy
Local Rule 109.2, counsel must (1) “satisfy the court that [he] has thoroughly examined
the record in search of appealable issues” and (2) “explain why the issues are frivolous.

-- 3 of 8 --

-4-
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.” United
States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). If the Anders brief appears adequate,
the court need not itself engage in a “complete scouring of the record,” but may be
“guided in reviewing the record by the Anders brief itself.” Id. at 301 (quoting United
States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996)).
III.
Counsel’s thorough brief meets the requirements of Anders, Coleman, and Local
Rule 109.2. The brief correctly observes that because Kelly pled guilty, he is limited to
arguing three issues on appeal: (1) the jurisdiction of the court below; (2) the
constitutional and statutory validity of the plea; and (3) the legality of his sentence. See
United States v. Broce, 488 U.S. 563, 569 (1989). Kelly pled guilty to a violation of the
federal narcotics conspiracy statute, 21 U.S.C. § 846. The District Court plainly had
jurisdiction over that offense under 18 U.S.C. § 3231. Thus there are no non-frivolous
jurisdictional issues to be argued.
Counsel’s brief notes several deficiencies in the colloquy conducted by the District
Court before Kelly changed his plea to guilty. The requirements of the colloquy are set
forth in Fed. R. Crim. P. 11(b), and are intended to ensure that the defendant’s decision to
plead guilty is made voluntarily, knowingly, and intelligently. See United States v.
Tidwell, 521 F.3d 236, 251-52 (3d Cir. 2008). Although the District Court’s colloquy

-- 4 of 8 --

-5-
covered many of the items provided in the Rule, it failed to address several required
topics. In particular, the District Court failed to explicitly inform Kelly that he had a right
to maintain his plea of not guilty; to inform Kelly that he had a right to be protected
against compelled self-incrimination and to present evidence on his own behalf; and to
discuss the impact of Kelly’s guilty plea on the forfeiture allegations contained in the
indictment.
Because Kelly did not object to the adequacy of the colloquy in the District Court,
we review only for plain error. United States v. Vonn, 535 U.S. 55, 59 (2002); United
States v. Corso, 549 F.3d 921, 926-27 (3d Cir. 2008). “Plain error requires that there
must be (1) error, (2) that is plain or obvious, and (3) that affects a defendant’s substantial
rights. If all three conditions are met, an appellate court may then exercise its discretion
to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings.” United States v. Goodson, 544 F.3d 529,
539 (3d Cir. 2008) (quoting Johnson v. United States, 520 U.S. 461, 467 (1997))
(alterations and internal citations omitted). The defendant bears the burden of persuading
us that any error affected his substantial rights. United States v. Adams, 252 F.3d 276,
281 (3d Cir. 2001). In the context of allegedly plain error under Rule 11, Kelly is
required to “show a reasonable probability that, but for the error, he would not have
entered the [guilty] plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
The District Court did not explicitly inform Kelly that he had a right to persist in

-- 5 of 8 --

-6-
his guilty plea, as required by Fed. R. Crim. P. 11(b)(1)(B). But Kelly’s right to plead not
guilty was implicit in at least one other question posed by the District Court. The Court
asked Kelly: “Do you understand that if you continue to plead not guilty and you don’t
change your plea, you have a right to be assisted by an attorney at the trial of these
charges?” Kelly answered, “Yes.” App. 26. Although the District Court would have
been well advised to make Kelly’s right to plead not guilty the focus of a separate inquiry,
we find it extremely unlikely that doing so would have caused Kelly to rethink his
decision to plead guilty. Kelly has not pointed to anything in the record suggesting either
that he did not know he had the right to maintain his plea of not guilty, or that he would
have exercised that right had the District Court specifically mentioned it during the plea
colloquy.
The District Court also failed to inform Kelly of his right against self-
incrimination, and of his right to present evidence at trial. See Fed. R. Crim. P.
11(b)(1)(E). While these lapses are clearly inconsistent with Rule 11, Kelly is again
unable to show that his substantial rights were affected by them – i.e., that there is a
reasonable probability that he would not have entered a guilty plea had the District Court
fully complied with Rule 11. See United States v. Griffin, 521 F.3d 727, 730 (7th Cir.
2008) (holding failure of District Court to inform defendant of right to present evidence
was not plain error); cf. United States v. Stead, 746 F.2d 355, 357 (6th Cir. 1984)
(holding trial court’s failure to inform defendant of right against self-incrimination

-- 6 of 8 --

-7-
constituted harmless error under Fed. R. Crim. P. 11(h)).
Finally, the District Court did not discuss the forfeiture allegations against Kelly
contained in the indictment, as required by Rule 11(b)(1)(J). Once again, although the
colloquy fell short of the Rule’s requirements, there is no reason to suppose Kelly would
not have pled guilty but for this omission. Other Courts of Appeals have similarly found
that a District Court’s failure to discuss forfeiture allegations during a plea colloquy does
not rise to the level of plain error. See United States v. Viveros, 298 Fed. App’x 817,
819-20 (11th Cir. 2008); United States v. Williamson, 219 Fed. App’x 332, 333 (4th Cir.
2007).
“The better practice unquestionably is to comply literally and completely with
every requirement of Rule 11.” United States v. de le Puente, 755 F.2d 313, 315 (3d Cir.
1985). The District Court did not do that here. Nevertheless, counsel correctly concludes
that Kelly is unable to demonstrate that his substantial rights have been affected by the
plea colloquy’s various shortcomings, or even by their possible cumulative effect.
Nothing in the record suggests that Kelly might not have entered a guilty plea had the
colloquy’s errors been corrected. There is thus no plain error, and there are no arguably
meritorious grounds upon which Kelly might challenge the validity of his guilty plea.
Finally, no non-frivolous arguments are available to Kelly in challenging his
sentence. The District Court sentenced Kelly to 240 months’ imprisonment, the minimum
term permitted by statute given the amount of narcotics involved in the charge to which

-- 7 of 8 --

-8-
Kelly pled guilty, and Kelly’s prior felony drug conviction. See 21 U.S.C. §
841(b)(1)(A); United States v. Williams, 510 F.3d 416, 418 n.1 (3d Cir. 2007). The
District Court had no discretion to impose a lesser sentence. The record reveals no
arguably meritorious challenges to Kelly’s sentence.
IV.
For the foregoing reasons, we will grant counsel’s motion to withdraw and affirm
the District Court’s judgment and sentence of April 17, 2008. We further hold that “the
issues presented in the appeal lack legal merit for purposes of counsel filing a petition for
writ of certiorari in the Supreme Court.” 3d Cir. L.A.R. 109.2(b).

-- 8 of 8 --