United States of America v. Keith Fisher

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 03-3164
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UNITED STATES OF AMERICA
v.
KEITH FISHER,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 01-203)
District Judge: The Honorable R. Barclay Surrick
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 7, 2004
BEFORE: AM BRO and VAN ANTWERPEN, Circuit Judges,
and SHADUR, District Judge*
(Filed February 4, 2005)
OPINION
__________
*Honorable Milton I. Shadur, United States District Judge for the Northern District
of Illinois, sitting by designation.

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SHADUR, District Judge.
Keith Fisher (“Fisher”) pleaded guilty to two counts of bank fraud in violation of
18 U.S.C. § 1344 in the case now on appeal, Docket No. 01-203 in the Eastern District of
Pennsylvania. Fisher also entered guilty pleas in two other cases: Docket No. 02-641 in
the Eastern District of Pennsylvania and Docket No. 03-199 in the District of New Jersey.
On April 11, 2003 the three cases were consolidated for sentencing in the Eastern District
of Pennsylvania. As to the two bank fraud counts in Docket No. 01-203, Fisher was
sentenced to concurrent terms of 96 months’ imprisonment and five years’ supervised
release (to run concurrently as well with the terms imposed in the other two cases) and
was ordered to pay a $200 special assessment and $6,500 in restitution. Fisher’s
restitution obligations in the other two cases aggregated $402,001.19.
Although Fisher then sought to file appeals in all three cases, the appeals in the
New Jersey-originated case and in one of the Pennsylvania-originated cases have earlier
been dismissed on the government’s motion because Fisher had expressly waived his
appellate rights in the plea agreements in those cases. That left viable only the current
appeal in Docket No. 01-203.
Fisher’s appointed counsel Elliot Cohen (“Cohen”) has moved to withdraw
pursuant to the well-known teaching of Anders v. California, 386 U.S. 738, 744 (1967):
Of course, if counsel finds his case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request
permission to withdraw. That request must, however, be accompanied by a
brief referring to anything in the record that might arguably support the

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appeal.
In turn, our Local Appellate Rule 109.2(a) implements the Anders command.
With any Anders-directed brief having been submitted, we engage in a twofold
inquiry (United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001)):
(1) whether counsel adequately fulfilled the rule’s requirements; and (2)
whether an independent review of the record presents any nonfrivolous
issues.
As to the first requirement, we explained in United States v. Marvin, 211 F.3d 778, 780
(3d Cir. 2000) (citing United States v. Tabb, 125 F.3d 583, 585-86 (7th Cir. 1997)) that
the duties of counsel when preparing an Anders brief are twofold:
(1) to satisfy the court that he or she has thoroughly scoured the record in
search of appealable issues; and (2) to explain why the issues are frivolous.
Although Cohen has regrettably failed to fulfill those duties, our own analysis readily
suffices to dispatch Fisher’s appeal. But before we explain why, a review of counsel’s
efforts is in order.
Cohen’s initial Anders brief did not deal with Docket No. 01-203 at
all--surprisingly, it instead addressed Docket No. 01-399, despite that appeal having
already been dismissed by this Court. When notified that his Anders brief had addressed
the wrong case, attorney Cohen initially refused to file a supplemental reply brief and
instead submitted a one-paragraph letter. That letter first stated a proposition already
recognized by Fisher’s pro se brief and by the government’s response: that the District
Court had erred in failing to fix a payment schedule for restitution. Next Cohen’s letter

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1 We do not of course fault Cohen for not having anticipated the unusual totality of the
Supreme Court’s decision in Booker, with its two separate majority opinions. But as to the
constitutional question posed by the current appeal, it was generally (if not indeed universally)
expected that the five-justice majority in Blakely would hold firm in applying the same analysis
to the federal Guidelines. And that proved to be the case, with Justice Stevens writing that
portion of the Court’s decision.
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proceeded to reject, without reference to any caselaw or record citations, Fisher’s pro se
contention that his sentence was unconstitutional under the principles set forth in Blakely
v. Washington, 124 S.Ct. 2531 (2004).
Unsatisfied with that response and its lack of analysis, we then ordered Cohen to
file a supplemental reply brief responsive to the issues raised by the government’s
response. Cohen has filed that brief, and it too falls short of the requirements set forth in
Anders and Marvin.
Cohen’s most recent brief does address, with reference to statutes, cases and
record citations, whether the sentencing court erred in establishing a restitution payment
schedule, and it concludes that remand is necessary as to that issue. As we have already
stated, that issue is really undisputed, and we agree.
But as to whether Fisher’s sentence is unconstitutional under the reasoning earlier
set forth in Blakely and since applied to the federal Sentencing Guidelines (“Guidelines”)
in United States v. Booker, 125 S.Ct. 738 (2005),1 Cohen does not demonstrate that he
has “thoroughly scoured the record” as to that issue. He addresses it in general terms and
makes no record citations of his own, instead inserting a paragraph from the
government’s brief that contains such citations. While, as we explain in the next section

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of this opinion, we agree with the government’s assessment of Fisher’s claim, Cohen’s
own effort falls well short of demonstrating “that he thoroughly searched the record and
the law in service of his client” (Marvin, 211 F.3d at 781).
Generally speaking, where as here “we are not satisfied that counsel adequately
attempted to uncover the best arguments for his client” (Marvin, 211 F.3d at 781), we will
reject counsel’s Anders brief, grant counsel’s motion to withdraw and appoint new
appellate counsel (see Youla, 241 F.3d at 302). But Marvin, 211 F.3d at 781 makes clear
that we need not follow that course of action, despite any inadequacy of the Anders brief,
“in those cases in which the frivolousness is patent.” After independently undertaking
our own thorough review of the record, we have concluded that Fisher’s appeal is
patently frivolous, with the exception of the payment schedule issue, and we therefore
find any appointment of new appellate counsel to be unnecessary.
Fisher’s Sixth Amendment Challenge
At sentencing, all of the counts in Fisher’s three consolidated cases made up a
single group, pursuant to the rules set out in Guidelines §§ 3D1.1 to 3D1.5, for purposes
of calculating a combined offense level adjusted upward from the base offense level of 6.
That combined offense level was determined by applying adjustments that were supported
entirely by the charges in Docket No. 02-641 and related conduct as found in that case,
comprising a 14-level increase for the amount of loss, a 2-level increase for the number of
victims, another 2-level increase based on Fisher’s employment of sophisticated means

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and a 3-level increase for committing the offenses involved in Docket No. 02-641 while
on pretrial release in Docket No. 01-203, with a 3-level reduction for acceptance of
responsibility. Fisher admitted the facts underlying all of those adjustments except that
for his asserted employment of sophisticated means.
When the adjusted combined offense level of 24 was then linked with Fisher’s
criminal history category IV, the resulting Guidelines range was 77 to 96 months. Fisher
was permissibly sentenced at the top of that range, 96 months, as to each charge that
permitted a sentence at that level--each of the two bank fraud counts in Docket No. 02-
641 and each of the two bank fraud counts in Docket No. 01-203, with those sentences to
run concurrently (see Guidelines § 5G1.2(b)). But because the statutorily authorized
maximum for the mail fraud counts in the other cases was 60 months, pursuant to
Guidelines §§ 5G1.1 and 5G1.2(b) that 60-month sentence was imposed on the remaining
five mail fraud counts (four stemming from Docket No. 03-199 and one from Docket No.
02-641), to run concurrently with the 96-month sentences imposed on the bank fraud
counts.
As stated earlier, during the pendency of this appeal the decision in Booker has
held that the Sixth Amendment principle announced in Blakely applies to the Guidelines
as well. And under Blakely and Booker the only potentially nonfrivolous argument that
Fisher could advance is that the increase in the adjusted combined offense level
ascribable to his use of sophisticated means was improper because it relied on the District

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Court’s finding of facts beyond those that Fisher had admitted.
But it will be recalled that the 96-month sentence imposed in Docket No. 01-203
was identical to that imposed on the other bank fraud counts in Docket No. 02-641--the
latter sentence having been based both on the admitted and the judicially found facts, and
having been rendered invulnerable to attack because of Fisher’s waiver of any right to
appeal the conviction or the sentence in that case. That being so, with Fisher’s conviction
in Docket No. 02-641 and the 96-month sentence imposed on the bank fraud counts in
that case thus being final, Booker offers him no potential relief (see 125 S.Ct. at 769,
specifying that its holding applies only to cases pending on direct review). Hence any
possible constitutional challenge to the sentence imposed in Docket No. 01-203, which
runs concurrently with the Docket No. 02-641 sentence (whose validity Fisher cannot
challenge), is moot. No relief that we could grant in this case would have any effect on
the 96-month sentence that Fisher must serve in all events because of the total punishment
on the counts in Docket No. 02-641.
We recognize that Benton v. Maryland, 395 U.S. 784, 789-91 (1969) held that a
challenge to a criminal conviction is not moot in the jurisdictional sense simply because
the sentence imposed on that conviction runs concurrently with a longer sentence whose
validity is not challenged. But the Court also recognized that the “concurrent sentence
rule” may still be employed as a discretionary bar to judicial review (id. at 791). And as
the Seventh Circuit has recognized, the reasons for applying that concept are particularly

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strong where, as here, “the challenge is to the sentence rather than the underlying
conviction” (United States v. Kimberlin, 675 F.2d 866, 867 (7th Cir. 1982)). In such
cases the unreviewed sentence is unlikely to have any adverse future collateral
consequences.
That is true of Fisher’s sentence in this case. In any future federal prosecution, the
calculation of Fisher’s criminal history would consider the sentences imposed in the three
cases discussed here to be “one sentence” (see Guidelines § 4A1.2(a)(2)) and would use
the longest of those sentences (the 96-month sentence imposed on the Docket No. 02-641
bank fraud counts) for purposes of determining Fisher’s criminal history category under
Guidelines § 4A1.1. Any reduction of the sentence in this case would accordingly have
no effect on any future criminal history category determination. Because Fisher thus has
nothing to gain from any possible favorable ruling on his Sixth Amendment challenge to
the sentence imposed in this case, nor anything to lose from our refusal to address that
challenge, we decline to review his sentence and find his appeal on that ground to be
wholly frivolous.
Conclusion
For the reasons stated in this opinion, we DISMISS Fisher’s substantive appeal as
frivolous. While we conclude that the patent frivolousness of Fisher’s challenge to the
length of his sentence does not require the appointment of new appellate counsel,
Cohen’s Anders brief correctly points out that the District Court failed to set a payment

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schedule for the total required restitution of $408,501.19, as is required by 18 U.S.C.
§3664(f)(1)(A)(2). Because nothing we have said as to Cohen’s handling of this appeal
suggests that he cannot competently represent Fisher in the resolution of that issue, we
DENY his motion to withdraw and REMAND the case to the District Court for the
limited purpose of establishing a payment schedule for restitution.

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