United States of America v. Kevin A. Minnis

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 05-4455
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UNITED STATES OF AMERICA,
Appellee
v.
KEVIN A. MINNIS,
Appellant
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Appeal from the
United States District Court for the
Eastern District of Pennsylvania
(D.C. No. 02-cr-00106-3)
District Judge: The Honorable Marvin Katz
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Submitted Under Third Circuit LAR 34.1(a)
February 27, 2007
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Before: MCKEE and ALDISERT, Circuit Judges, and
RESTANI*, Judge
(Filed: March 1, 2007)
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OPINION
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________________________
*Honorable Jane A. Restani, Chief Judge of the United States Court of
International Trade, sitting by designation.
RESTANI, Judge.

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Defendant Kevin A. Minnis appeals his sentence for possession of cocaine base with
intent to distribute, carrying a firearm during and in relation to a drug trafficking felony, and
possession of a firearm by a felon. Minnis’ counsel has filed a motion to withdraw and has
submitted a brief under Anders v. California, 386 U.S. 738 (1967), asserting that the issues
raised in the appeal are wholly frivolous. For the reasons stated below, we will affirm the
sentencing order and grant counsel’s request to withdraw.
I. Factual and Procedural History
This case arises from a high-speed car chase and resulting arrests on September 28,
2001. Minnis and co-defendants Reginal Scott and Kevin Davis were tried together
before a jury in the Eastern District of Pennsylvania. Each defendant was charged with
possession of cocaine base with intent to distribute under 21 U.S.C. § 841(a)(1) and
carrying firearms during and in relation to the underlying drug felony, 18 U.S.C.
§ 924(c)(1)(A), and Minnis faced an additional charge of possession of a firearm by a
convicted felon under 18 U.S.C. § 922(g)(1). Each of the defendants were convicted on
all counts.
The defendants were sentenced separately. Davis was sentenced to 37 months of
imprisonment on the possession charge, a consecutive term of seven years on the firearms
count, five years of supervised release and a special assessment of $200. Scott received
63 months of imprisonment on the first charge, followed by a consecutive sentence of 120
months imprisonment on the second charge, five years supervised release and a special
assessment of $200. Minnis was sentenced to 262 months for the first two charges, plus a

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1The sentences of Davis and Scott were also reimposed, and Scott filed timely
appeal, pending at No. 05-4472. Davis did not appeal.
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consecutive sentence of 60 months on his additional charge, resulting in a total sentence
of 322 months of imprisonment. He also received a supervised release term of five years
and special assessment of $300. All three defendants filed timely notices of appeal.
On February 11, 2005, we affirmed the appellants’ judgments of conviction, but
remanded the cases for resentencing pursuant to United States v. Booker, 543 U.S. 220
(2005). United States v. Davis, 397 F.3d 173 (3d Cir. 2005). We denied the
government’s request for rehearing in United States v. Davis, 407 F.3d 162 (3d Cir. 2005)
(en banc), setting forth the general rule that plain error would be presumed where the
District Court applied the sentencing guidelines as mandatory prior to Booker and the
case remained on direct appeal when Booker was decided. Id. at 165. Accordingly, the
cases returned to the District Court for resentencing.
On August 1, 2005, the District Court again sentenced Minnis to a total of 322
months imprisonment, plus five years supervised release and a special assessment of
$300. Pursuant to Booker, the District Court also issued a written Order setting forth its
reasons for imposing the sentence. Minnis filed timely appeal.1
On September 29, 2006, Minnis’ counsel filed an Anders brief, seeking to
withdraw on the grounds that Minnis’ appeal raises no meritorious issues.

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II. Jurisdiction and Standard of Review
The District Court had jurisdiction over the federal criminal charges pursuant to 18
U.S.C. § 3231. We have jurisdiction to review a final judgment of the District Court
under 28 U.S.C. § 1291.
Our review of the constitutionality of sentencing procedures is plenary. United
States v. Barbosa, 271 F.3d 438, 452 (3d Cir. 2001). We review sentences for
reasonableness. Booker, 543 U.S. at 261.
III. Discussion
Third Circuit Local Appellate Rule 109.2(a) states that “[w]here, upon review of the
district court record, trial counsel is persuaded that the appeal presents no issue of even
arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to
Anders.” 3d Cir. R. 109.2(a). Counsel’s brief must refer “to anything in the record that
might arguably support the appeal,” including applicable legal authorities, and a copy of the
brief must be provided to the appellant with an opportunity to respond. Anders, 386 U.S. at
744. Our inquiry under this rule is twofold: 1) “whether counsel adequately fulfilled the
rule’s requirements,” and 2) “whether an independent review of the record presents any
nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Where
counsel files an adequate Anders brief, “we confine our scrutiny to those portions of the
record identified by [the Anders brief] . . . [and] those issues raised in Appellant’s pro se
brief.” Id. at 301.
Here, counsel identifies one possible basis for appeal: the jury did not determine

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whether Minnis had been previously convicted of the three prior serious offenses required
for the judge to impose a minimum sentence of fifteen years under 18 U.S.C. § 924(e).
Counsel points to applicable law to indicate that this claim is unsupported. Under
Almendarez-Torres, prior convictions not submitted to the jury may be used in sentencing
to increase the applicable penalty. Almendarez-Torres v. United States, 523 U.S. 224, 244
(1998). Although the scope of Almendarez-Torres has been called into question following
Booker and Apprendi, Apprendi declined to overturn Almendarez-Torres with respect to
prior convictions. Apprendi v. New Jersey, 530 U.S. 466, 489–90 (2000). This court has
also upheld a District Court’s use of prior convictions for the purposes of sentencing
enhancement. United States v. Jones, 332 F.3d 688, 694–95 (3d Cir. 2003). In addition,
counsel’s brief notes that even if there was legal support for this argument, Minnis stipulated
at trial to the existence of the three prior convictions. For these reasons, it is evident that
counsel searched the record and relevant law and found that there is nothing to support
Minnis’ appeal.
In his pro se brief, Minnis objects to the jury instructions submitted on the 18 U.S.C.
§ 924(c) charge, and argues that his sentence is unreasonably disproportionate to those
imposed on Scott and Davis. Both of these arguments are also without merit. In the previous
appeal, we examined and rejected challenges to Minnis’ conviction, and remanded only on
the issue of resentencing consistent with Booker. See Davis, 397 F.3d at 183. In addition,
Minnis did not raise the challenge to the jury instructions in the initial appeal, and this issue
is therefore waived. United States v. Ordaz, 184 F. App’x 229–30 (3d Cir. 2006) (not

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2The maximum term of imprisonment for possession of cocaine base with intent to
distribute is thirty years. 21 U.S.C. § 841(b)(1)(C). The maximum sentence for possession of a
firearm in connection with a drug trafficking offense is life imprisonment, with a mandatory
minimum sentence of five years pursuant to 18 U.S.C. § 924(c)(1)(A). The maximum sentence
for possession of a firearm by a convicted felon is life imprisonment, with a mandatory minimum
term of not less than fifteen years. 18 U.S.C. § 922(g)(1), § 924(e). Minnis’ offense level was
34 and his criminal history category was VI, which produces a range of 262 to 327 months under
the Guidelines, plus 60 months imposed by the District Court under 18 U.S.C. § 924(c).
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precedential) (citing United States v. Pultrone, 241 F.3d 306 (3d Cir. 2001)). Even if not
waived, this argument is legally unfounded. The jury instructions clearly state the elements
of the offense, and explain that each element must be proved beyond a reasonable doubt.
The statement of the underlying offense required to reach Minnis’ related firearms charge
under § 924(c) sets forth an essential element of the charge that may be properly included in
the instructions to the jury.
Similarly, Minnis’ argument that his sentence is unreasonably disproportionate to
those of Scott and Davis is unsupported by existing law. This court has held that sentencing
disparity among co-defendants does not render a sentence unreasonable. United States v.
Parker, 462 F.3d 273, 277 (3d Cir. 2006), cert. denied, 127 S.Ct. 462 (2006) (“We have
concluded that Congress’s primary goal . . . was to promote national uniformity in sentencing
rather than uniformity among co-defendants in the same case.”) Minnis’ sentence does not
exceed statutory guidelines,2 and the District Court took into account all necessary factors
under the relevant statutes. Minnis fails to note that his higher sentence resulted in
significant part from the fact that he was deemed an armed career criminal by the court, and
was convicted of an additional charge not faced by his co-defendants.

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Therefore, we find that counsel’s Anders brief explored all possible issues for appeal
and properly explained why the appeal presents no issue of arguable merit. Counsel’s brief
was provided to Minnis with adequate opportunity to respond, and the pro se brief raises no
additional nonfrivolous issues. Our independent review of the record supports these
conclusions. For these reasons, we hold that the requirements of LAR 109.2(a) have been
fulfilled.
Accordingly, we will AFFIRM Minnis’ sentence and GRANT defense counsel’s
motion to withdraw.

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