The Honorable Mark R. Kravitz, of the United States District Court for the District… v. Elbert UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4 August Term,…

* The Honorable Mark R. Kravitz, of the United States
District Court for the District of Connecticut, sitting by
designation.
10-72-cr
United States v. Elbert
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2010 5
6
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(Submitted: April 8, 2011 Decided: September 19, 2011) 8
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Docket No. 10-72-cr 10
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UNITED STATES, 14
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Appellee, 16
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- v.- 18
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VINCENT ELBERT, a.k.a. BJOHNTO90, 20
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Defendant-Appellant. 22
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Before: JACOBS, Chief Judge, CABRANES, Circuit 26
Judge, and KRAVITZ, District Judge.*
27
28
On defendant Vincent Elbert’s appeal from his 29
conviction and sentence imposed, after his guilty plea, by 30
the United States District Court for the Southern District 31
of New York (Rakoff, J.), counsel filed a motion with this 32
Court pursuant to Anders v. California, 386 U.S. 738 (1967) 33
and the government filed a motion for summary affirmance. 34

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2
The motions are granted. Although we have previously held 1
that, solely in the context of an Anders motion, failure to 2
provide a written statement of reasons that complies with 18 3
U.S.C. § 3553(c)(2) always necessitates a remand to the 4
district court, United States v. Hall, 499 F.3d 152 (2d Cir. 5
2007) (per curiam), we see no reason why the Anders context 6
requires this unique treatment. We therefore hold that, 7
although compliance with the strictures of section 8
3553(c)(2) is always required, remand is not always required 9
to remedy noncompliance. In so ruling, we abrogate our 10
prior holding in Hall only to the limited extent that it 11
uniformly required remand in these circumstances. 12
HOWARD M. SIMMS, New York, New 13
York, for Appellant. 14
15
DANIEL CHUNG, Assistant United 16
States Attorney, for Preet 17
Bharara, United States Attorney 18
for the Southern District of New 19
York, New York, New York, for 20
Appellee. 21
22
DENNIS JACOBS, Chief Judge: 23
24
On defendant Vincent Elbert’s appeal from his 25
conviction and sentence imposed, after his guilty plea, by 26
the United States District Court for the Southern District 27
of New York (Rakoff, J.), counsel filed a motion with this 28
Court pursuant to Anders v. California, 386 U.S. 738 (1967) 29

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3
and the government filed a motion for summary affirmance. 1
Because there are no non-frivolous issues for appeal and 2
remand cannot benefit the defendant in this case, we grant 3
defense counsel’s motion to be relieved and the government’s 4
motion for summary affirmance. Our review of the record 5
shows that the district court imposed a below-Guidelines 6
sentence without providing a written statement that 7
explained with “specificity,” 18 U.S.C. § 3553(c)(2), the 8
reasons for the sentence imposed. 9
We have previously held that, in the context of an 10
Anders motion, failure to provide a statement of reasons 11
that complies with section 3553(c)(2) necessitates a remand 12
to the district court. See United States v. Hall, 499 F.3d 13
152, 157 (2d Cir. 2007) (per curiam). We have not, however, 14
applied as rigid a requirement in the non-Anders context. 15
See, e.g., United States v. Jones, 460 F.3d 191, 197 (2d 16
Cir. 2006); United States v. Fuller, 426 F.3d 556, 567 (2d 17
Cir. 2005). We now hold that--even in the context of an 18
Anders motion--although compliance with section 3553(c)(2) 19
is always required, remand is not always required to remedy 20
noncompliance. In so holding, we abrogate our prior holding 21
in Hall to the limited extent that it uniformly requires 22
remand in these circumstances. 23

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2 Before accepting the defendant’s guilty plea the
district court confirmed that, in 1990, Elbert was
convicted, after a jury trial, in Missouri state court of
sodomy and sexual abuse in the first degree.
4
BACKGROUND 1
Vincent Elbert pleaded guilty to (i) one count of 2
attempting, after a prior sex-offense conviction, to entice 3
individuals under the age of eighteen to engage in sexual 4
activity for which a person can be charged with a criminal 5
offense, in violation of 18 U.S.C. §§ 2422(b) and 2426; (ii) 6
one count of traveling in interstate commerce, after a prior 7
sex-offense conviction, for the purpose of engaging in 8
illicit sexual conduct, in violation of 18 U.S.C. §§ 2423(b) 9
and 2426; and (iii) one count of distributing child 10
pornography, after a prior conviction for aggravated sexual 11
abuse, sexual abuse, or abusive sexual conduct involving a 12
minor or ward, in violation of 18 U.S.C. §§ 2252A(a)(1) and 13
2252A(b)(1).2
14
Prior to accepting the defendant’s guilty plea, the 15
district judge conducted a hearing in full compliance with 16
Federal Rule of Criminal Procedure 11, including confirming: 17
that Elbert understood the nature of the charges against 18
him, that a sufficient factual predicate supported the 19
charges to which he was pleading guilty, that Elbert 20

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5
understood the rights he was giving up by pleading guilty, 1
and that he was satisfied with his counsel’s representation. 2
The district court also ensured that Elbert understood the 3
statutory minimum and maximum sentences associated with each 4
count of the indictment, including a mandatory minimum 5
sentence of twenty years and maximum sentence of life 6
imprisonment on count one. 7
The government asked the district court to sentence 8
Elbert to a within-Guidelines sentence of 360 months’ to 9
life imprisonment. The defendant sought a below-Guidelines 10
sentence, citing an expert psychological evaluation which 11
detailed trauma he experienced as a child and described the 12
impact of his military service in Vietnam. At the 13
conclusion of a thorough sentencing hearing, the district 14
judge concluded that Elbert “is a troubled personality” who 15
had made “terrible mistakes,” and that the mandatory minimum 16
sentence of twenty years’ imprisonment, to be followed by 17
five years of supervised release, was “sufficient, but not 18
greater than necessary,” in light of the “nature and 19
circumstances of the offense and the history and 20
characteristics of the defendant,” 18 U.S.C. § 3553(a), to 21
adequately address the factors set out in 18 U.S.C. 22
§ 3553(a)(2). Elbert has filed a timely notice of appeal; 23

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his counsel has filed a motion to be relieved pursuant to 1
Anders v. California, 386 U.S. 738 (1967); and the 2
government has moved for summary affirmance. 3
DISCUSSION 4
“Not infrequently, an attorney appointed to represent 5
an indigent defendant . . . concludes that an appeal would 6
be frivolous and requests that the appellate court allow him 7
to withdraw” without filing a brief on the merits. Smith v. 8
Robbins, 528 U.S. 259, 264 (2000). The Court is then 9
required to “safeguard against the risk of granting such 10
requests in cases where the appeal is not actually 11
frivolous.” Id. In Anders, the Supreme Court established a 12
“prophylactic,” id. at 265, procedure: If followed, that 13
procedure allows defense counsel to “assure the court that 14
the indigent defendant’s constitutional rights have not been 15
violated.” McCoy v. Court of Appeals of Wis., Dist. 1, 486 16
U.S. 429, 442 (1988). At the same time, Anders recognized 17
“that the right to appellate representation does not include 18
a right to present frivolous arguments to the court” and 19
that “an attorney is ‘under an ethical obligation to refuse 20
to prosecute a frivolous appeal.’” Smith, 528 U.S. at 272 21
(quoting McCoy, 486 U.S. at 436). A driving force behind 22
the Supreme Court’s opinion in Anders is to ensure that 23

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appointed defense counsel fulfills “[h]is role as advocate.” 1
Anders, 386 U.S. at 744; see also id. at 743, 745. 2
A review of the record confirms the view of defense 3
counsel that Elbert’s guilty plea was “completely voluntary 4
and knowing,” United States v. Torres, 129 F.3d 710, 715 (2d 5
Cir. 1997), and there is no non-frivolous issue available 6
for appeal, see United States v. Ibrahim, 62 F.3d 72, 74 (2d 7
Cir. 1995) (per curiam) (explaining that when, as here, a 8
defendant does not challenge the validity of a guilty plea, 9
counsel should “discuss the validity of the plea and why 10
there are no non-frivolous issues regarding the plea on 11
which to base an appeal”). As the district court observed, 12
the properly calculated sentencing Guidelines prescribed a 13
sentence of thirty years’ to life imprisonment. The 14
district court instead imposed the mandatory statutory 15
minimum sentence of twenty years, to be followed by a term 16
of supervised release. 17
At the sentencing proceeding, the district judge 18
explicitly set forth his consideration of the factors set 19
out in 18 U.S.C. § 3553(a). See United States v. Fleming, 20
397 F.3d 95, 99 (2d Cir. 2005). Counsel can raise no 21
colorable argument that the sentence imposed is procedurally 22
or substantively unreasonable. See United States v. Samas, 23

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561 F.3d 108, 111 (2d Cir. 2009) (“The wording of § 3553(a) 1
is not inconsistent with a sentencing floor.”). Given this 2
record, the risks associated with challenging either the 3
validity of the plea or the sentence are “fairly inferable 4
from counsel’s report of the sentence and the circumstances 5
under which it was imposed.” United States v. Bygrave, 97 6
F.3d 708, 709 (2d Cir. 1996). 7
Counsel for the defendant has, in all respects, 8
complied with his duty to “conscientiously determine[] that 9
there is no merit to [Elbert’s] appeal.” Anders, 386 U.S. 10
at 739. However, the district court’s written statement of 11
reasons for the sentence imposed, see 18 U.S.C. 12
§ 3553(c)(2), provides only that the non-Guidelines sentence 13
was imposed for the reasons stated at the sentencing 14
proceeding orally. Our precedent requires that the district 15
court provide a written statement of reasons, that it 16
include at least “a simple summary of facts” and “that in 17
the context of an Anders review counsel may not waive the 18
written statement requirement of section 3553(c)(2) even 19
though the district court gave adequate oral explanations 20
for the sentence.” Hall, 499 F.3d at 155, 157. 21
“We readily acknowledge that a panel of our Court is 22
bound by the decisions of prior panels until such time as 23

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9
they are overruled either by an en banc panel of our Court 1
or by the Supreme Court.” Shipping Corp. of India Ltd. v. 2
Jaldhi Overseas Pte Ltd., 585 F.3d 58, 67 (2d Cir. 2009) 3
(internal quotation marks omitted). In the ordinary case, 4
it is “neither appropriate nor possible” for a panel of this 5
Court “to reverse an existing Circuit precedent.” Id. In 6
this case, however, we have circulated this opinion to all 7
active members of the Court, United States v. Parkes, 497 8
F.3d 220, 230 n.7 (2d Cir. 2007), and we now relinquish the 9
position--previously adopted in Hall--that, in the context 10
of an Anders motion, remand is always required when the 11
written statement of reasons for the sentence imposed does 12
not strictly comply with § 3553(c)(2). 13
As Hall points out, the requirement that the district 14
judge provide a written statement of reasons for the 15
sentence imposed assists in the collection of data by the 16
Bureau of Prisons and the Sentencing Commission. Hall, 499 17
F.3d at 154. That is no doubt to the good. At the same 18
time, there are anomalies: the Hall remand requirement 19
operates only in the Anders context. Hall explicitly 20
recognizes that “parties may waive the section 3553(c)(2) 21
requirement in a non-Anders case.” Id. at 156. So, a 22
lawyer who advances appellate arguments (however thin) on 23

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behalf of a client does not necessarily open to scrutiny the 1
issue of compliance with § 3553(c)(2). Moreover, Hall may 2
sometimes have the effect of requiring defense counsel to 3
urge this Court to remand when a remand would be of no 4
benefit for the client. This casts the defense lawyer in a 5
role other than that of advocate representing the interests 6
of the client. True, lawyers appointed under the Criminal 7
Justice Act, like all others, are officers of the court; but 8
the remand required by Hall is not one that benefits the 9
courts. Rather, we are setting the lawyer to work for the 10
Bureau of Prisons and the Sentencing Commission, and doing a 11
futile job of it in any event. We are convinced that the 12
bright line rule established in Hall may undermine, rather 13
than serve, the goals of vigorous representation described 14
in Anders. We therefore abrogate the holding of Hall to the 15
extent--but only to the extent--that it uniformly requires 16
remand when the district court fails to provide a written 17
statement of reasons or when that statement fails to 18
“state[] with specificity” the reasons for the sentence 19
imposed. 18 U.S.C. § 3553(c)(2). 20
As Hall warns, it may be speculative “to say that the 21
absence of the written statement would have no effect.” 499 22
F.3d at 155. But, the fact that there may be cases where 23

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the absence of a written statement could have an effect does 1
not justify the bright line rule; there are other cases in 2
which it is quite clear that the absence of a written 3
statement could not raise a non-frivolous appellate issue. 4
It is hardly speculative to conclude that a remand in this 5
case to require the district court to set down the reasons 6
for a properly imposed, below-Guidelines sentence can confer 7
no benefit on this criminal defendant, who has been 8
sentenced to the statutory minimum. 9
It would be speculative, however, to say that there is 10
no circumstance in which remand for a written statement of 11
reasons will elicit from the district judge observations 12
that are detrimental to a defendant. Quite apart from any 13
facts presented by this case, a sentence might be influenced 14
by cooperation with the authorities, or other things the 15
defendant would not want memorialized in a written judgment. 16
See id. (observing that “circulation through the Bureau of 17
Prisons of a detailed statement of the facts underlying some 18
reasons can present particular concerns, as for example when 19
a statement references sensitive information about crime 20
victims, the defendant, or members of his family”); United 21
States v. Verkhoglyad, 516 F.3d 122, 134 n.9 (2d Cir. 2008). 22
Requiring a defendant’s lawyer to elicit such information 23
goes against the grain of advocacy. 24

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All these things considered, it does seem a waste of 1
public funds that Congress appropriated for the defense of 2
those accused and convicted to require a lawyer to perform a 3
role and task that cannot benefit the client. A lawyer 4
should not be compelled to perform if there is no appellate 5
argument to make. At the same time, it is important to 6
acknowledge that if, in a given case, the absence of a 7
written statement of reasons (or the content of that 8
statement) provides an “arguable” basis for appeal, the 9
Anders motion should be denied. Anders, 386 U.S. at 744. 10
The principle in non-Anders cases is that it is the 11
better course--though not required--to remand when the 12
district court does not strictly comply with 18 U.S.C. 13
§ 3553(c)(2). E.g., Jones, 460 F.3d at 197; Fuller, 426 14
F.3d at 567; see also, e.g., United States v. Daychild, 357 15
F.3d 1082, 1107 (9th Cir. 2004). So, a lawyer with any 16
appellate argument to make may “waive[] any claim for relief 17
on the basis of deficiencies in the district court’s written 18
explanation” of the sentence. United States v. Pereira, 465 19
F.3d 515, 524 (2d Cir. 2006). 20
Nothing about the context of an Anders motion should 21
forbid waiver, except that in the Anders context, our 22
independent review of the record brings non-compliance to 23
our attention. But, a lawyer, acting as an advocate for a 24

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client and as an officer of the court, should make an 1
independent judgment as to whether deficiencies in a written 2
statement of reasons presents a non-frivolous appellate 3
issue. And, this Court, in reviewing the Anders motion, 4
will determine whether counsel’s assessment of an issue “is, 5
in fact, legally correct.” United States v. Whitley, 503 6
F.3d 74, 76 (2d Cir. 2007) (per curiam) (internal quotation 7
marks omitted). This process will adequately safeguard a 8
defendant’s “Sixth Amendment right to representation by 9
competent counsel.” McCoy, 486 U.S. at 436 (observing that 10
the Sixth Amendment right to competent representation is 11
retained on appeal). At the same time, it will ensure that 12
counsel’s role is not misdirected by the advancement of 13
frivolous arguments or by advocacy of measures that do not 14
serve the client, and that “the energies of the court or the 15
opposing party,” id., are not spent on cases in which an 16
Anders motion should properly be granted. 17
CONCLUSION 18
For the foregoing reasons, we grant defense counsel’s 19
motion to be relieved as counsel pursuant to Anders v. 20
California, 386 U.S. 738 (1967). We also grant the 21
government’s motion for summary affirmance of this appeal. 22

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