USA v. Jeffrey Aronofsky

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 21-10500
Non-Argument Calendar
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D.C. Docket No. 6:19-cr-00240-WWB-GJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY ARONOFSKY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 26, 2021)
Before WILSON, JORDAN, and GRANT, Circuit Judges.
PER CURIAM:
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Stephen J. Langs, appointed counsel for Jeffrey Aronofsky in this direct
criminal appeal, has moved to withdraw from further representation of the
appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967).
Our independent review of the entire record reveals that counsel’s assessment of
the relative merit of the appeal is correct. Because independent examination of the
entire record reveals no arguable issues of merit, counsel’s motion to withdraw is
GRANTED, and Aronofsky’s conviction and sentence are AFFIRMED.
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JORDAN, Circuit Judge, dissenting.
With respect, I dissent. I would not allow counsel to withdraw and would not
affirm under Anders v. California, 386 U.S. 738 (1967).
The district court sentenced Mr. Aronofsky to 20 years in prison, which was
about 2 ½ years above the top of the advisory guideline range. Anders is concerned
with frivolous appeals, see Smith v. Robbins, 528 U.S. 259, 272 (2000), and I don’t
think that an appeal of the upward variance would be frivolous. It would certainly
be difficult given this court’s precedents, but it would not “lack[ ] an arguable basis
either in law or fact.” Nietzke v. Williams, 490 U.S. 319, 325 (1989). The
reasonableness of a sentence, particularly a sentence based upon an upward variance,
requires an individualized inquiry. Mr. Aronofsky’s counsel submits in his motion
to withdraw that the 20-year sentence here “may arguably” be substantively
unreasonable, and I would direct him to brief that issue. See id. at 329 (“not all
unsuccessful claims are frivolous”).
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