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United States v. Vincent Elbert


September 19, 2011


The opinion of the court was delivered by: Dennis Jacobs, Chief Judge:

Submitted: April 8, 2011

Before: JACOBS, Chief Judge, CABRANES, Circuit Judge, and KRAVITZ, District Judge.*fn1

On defendant Vincent Elbert's appeal from his 30 conviction and sentence imposed, after his guilty plea, by 31 the United States District Court for the Southern District 32 of New York (Rakoff, J.), counsel filed a motion with this 33 Court pursuant to Anders v. California, 386 U.S. 738 (1967) 34 and the government filed a motion for summary affirmance.

1 The motions are granted. Although we have previously held 2 that, solely in the context of an Anders motion, failure to 3 provide a written statement of reasons that complies with 18 4 U.S.C. § 3553(c)(2) always necessitates a remand to the 5 district court, United States v. Hall, 499 F.3d 152 (2d Cir. 6 2007) (per curiam), we see no reason why the Anders context 7 requires this unique treatment. We therefore hold that, 8 although compliance with the strictures of section 9 3553(c)(2) is always required, remand is not always required 10 to remedy noncompliance. In so ruling, we abrogate our 11 prior holding in Hall only to the limited extent that it 12 uniformly required remand in these circumstances.

On defendant Vincent Elbert's appeal from his 26 conviction and sentence imposed, after his guilty plea, by 27 the United States District Court for the Southern District 28 of New York (Rakoff, J.), counsel filed a motion with this 29 Court pursuant to Anders v. California, 386 U.S. 738 (1967) and the government filed a motion for summary affirmance.

2 Because there are no non-frivolous issues for appeal and 3 remand cannot benefit the defendant in this case, we grant 4 defense counsel's motion to be relieved and the government's 5 motion for summary affirmance. Our review of the record 6 shows that the district court imposed a below-Guidelines 7 sentence without providing a written statement that 8 explained with "specificity," 18 U.S.C. § 3553(c)(2), the 9 reasons for the sentence imposed.

10 We have previously held that, in the context of an 11 Anders motion, failure to provide a statement of reasons 12 that complies with section 3553(c)(2) necessitates a remand 13 to the district court. See United States v. Hall, 499 F.3d 14 152, 157 (2d Cir. 2007) (per curiam). We have not, however, 15 applied as rigid a requirement in the non-Anders context.

16 See, e.g., United States v. Jones, 460 F.3d 191, 197 (2d 17 Cir. 2006); United States v. Fuller, 426 F.3d 556, 567 (2d 18 Cir. 2005). We now hold that--even in the context of an 19 Anders motion--although compliance with section 3553(c)(2) 20 is always required, remand is not always required to remedy 21 noncompliance. In so holding, we abrogate our prior holding 22 in Hall to the limited extent that it uniformly requires 23 remand in these circumstances.


Vincent Elbert pleaded guilty to (i) one count of 3 attempting, after a prior sex-offense conviction, to entice 4 individuals under the age of eighteen to engage in sexual 5 activity for which a person can be charged with a criminal 6 offense, in violation of 18 U.S.C. §§ 2422(b) and 2426; (ii) 7 one count of traveling in interstate commerce, after a prior 8 sex-offense conviction, for the purpose of engaging in 9 illicit sexual conduct, in violation of 18 U.S.C. §§ 2423(b) 10 and 2426; and (iii) one count of distributing child 11 pornography, after a prior conviction for aggravated sexual 12 abuse, sexual abuse, or abusive sexual conduct involving a 13 minor or ward, in violation of 18 U.S.C. §§ 2252A(a)(1) and 14 2252A(b)(1).*fn2

15 Prior to accepting the defendant's guilty plea, the 16 district judge conducted a hearing in full compliance with 17 Federal Rule of Criminal Procedure 11, including confirming: 18 that Elbert understood the nature of the charges against 19 him, that a sufficient factual predicate supported the 20 charges to which he was pleading guilty, that Elbert understood the rights he was giving up by pleading guilty, 2 and that he was satisfied with his counsel's representation.

3 The district court also ensured that Elbert understood the 4 statutory minimum and maximum sentences associated with each 5 count of the indictment, including a mandatory minimum 6 sentence of twenty years and maximum sentence of life 7 imprisonment on count one.

8 The government asked the district court to sentence 9 Elbert to a within-Guidelines sentence of 360 months' to 10 life imprisonment. The defendant sought a below-Guidelines 11 sentence, citing an expert psychological evaluation which 12 detailed trauma he experienced as a child and described the 13 impact of his military service in Vietnam. At the 14 conclusion of a thorough sentencing hearing, the district 15 judge concluded that Elbert "is a troubled personality" who 16 had made "terrible mistakes," and that the mandatory minimum 17 sentence of twenty years' imprisonment, to be followed by 18 five years of supervised release, was "sufficient, but not 19 greater than necessary," in light of the "nature and 20 circumstances of the offense and the history and 21 characteristics of the defendant," 18 U.S.C. § 3553(a), to 22 adequately address the factors set out in 18 U.S.C. 23 § 3553(a)(2). Elbert has filed a timely notice of appeal; 1 his counsel has filed a motion to be relieved pursuant to 2 Anders v. California, 386 U.S. 738 (1967); and the 3 government has moved for summary affirmance.


"Not infrequently, an attorney appointed to represent 6 an indigent defendant . . . concludes that an appeal would 7 be frivolous and requests that the appellate court allow him 8 to withdraw" without filing a brief on the merits. Smith v. 9 Robbins, 528 U.S. 259, 264 (2000). The Court is then 10 required to "safeguard against the risk of granting such 11 requests in cases where the appeal is not actually 12 frivolous." Id. In Anders, the Supreme Court established a 13 "prophylactic," id. at 265, procedure: If followed, that 14 procedure allows defense counsel to "assure the court that 15 the indigent defendant's constitutional rights have not been 16 violated." McCoy v. Court of Appeals of Wis., Dist. 1, 486 17 U.S. 429, 442 (1988). At the same time, Anders recognized 18 "that the right to appellate representation does not include 19 a right to present frivolous arguments to the court" and 20 that "an attorney is 'under an ethical obligation to refuse 21 to prosecute a frivolous appeal.'" Smith, 528 U.S. at 272 22 (quoting McCoy, 486 U.S. at 436). A driving force behind 23 the Supreme Court's opinion in Anders is to ensure that 1 appointed defense counsel fulfills "[h]is role as advocate."

2 Anders, 386 U.S. at 744; see also id. at 743, 745. 3 A review of the record confirms the view of defense 4 counsel that Elbert's guilty plea was "completely voluntary 5 and knowing," United States v. Torres, 129 F.3d 710, 715 (2d 6 Cir. 1997), and there is no non-frivolous issue available 7 for appeal, see United States v. Ibrahim, 62 F.3d 72, 74 (2d 8 Cir. 1995) (per curiam) (explaining that when, as here, a 9 defendant does not challenge the validity of a guilty plea, 10 counsel should "discuss the validity of the plea and why 11 there are no non-frivolous issues regarding the plea on 12 which to base an appeal"). As the district court observed, 13 the properly calculated sentencing Guidelines prescribed a 14 sentence of thirty years' to life imprisonment.

The 15 district court instead imposed the mandatory statutory 16 minimum sentence of twenty years, to be followed by a term 17 of supervised release.

18 At the sentencing proceeding, the district judge 19 explicitly set forth his consideration of the factors set 20 out in 18 U.S.C. § 3553(a). See United States v. Fleming, 21 397 F.3d 95, 99 (2d Cir. 2005). Counsel can raise no 22 colorable argument that the sentence imposed is procedurally 23 or substantively unreasonable. See United States v. Samas, 1 561 F.3d 108, 111 (2d Cir. 2009) ("The wording of § 3553(a) 2 is not inconsistent with a sentencing floor."). Given this 3 record, the risks associated with challenging either the 4 validity of the plea or the sentence are "fairly inferable 5 from counsel's report of the sentence and the circumstances 6 under which it was imposed." United States v. Bygrave, 97 7 F.3d 708, 709 (2d Cir. 1996).

8 Counsel for the defendant has, in all respects, 9 complied with his duty to "conscientiously determine[] that 10 there is no merit to [Elbert's] appeal." Anders, 386 U.S. 11 at 739. However, the district court's written statement of 12 reasons for the sentence imposed, see 18 U.S.C. 13 § 3553(c)(2), provides only that the non-Guidelines sentence 14 was imposed for the reasons stated at the sentencing 15 proceeding orally. Our precedent requires that the district 16 court provide a written statement of reasons, that it 17 include at least "a simple summary of facts" and "that in 18 the context of an Anders review counsel may not waive the 19 written statement requirement of section 3553(c)(2) even 20 though the district court gave adequate oral explanations 21 for the sentence." Hall, 499 F.3d at 155, 157.

22 "We readily acknowledge that a panel of our Court is 23 bound by the decisions of prior panels until such time as 1 they are overruled either by an en banc panel of our Court 2 or by the Supreme Court." Shipping Corp. of India Ltd. v. 3 Jaldhi Overseas Pte Ltd., 585 F.3d 58, 67 (2d Cir. 2009) 4 (internal quotation marks omitted). In the ordinary case, 5 it is "neither appropriate nor possible" for a panel of this 6 Court "to reverse an existing Circuit precedent." Id. In 7 this case, however, we have circulated this opinion to all 8 active members of the Court, United States v. Parkes, 497 9 F.3d 220, 230 n.7 (2d Cir. 2007), and we now relinquish the 10 position--previously adopted in Hall--that, in the context 11 of an Anders motion, remand is always required when the 12 written statement of reasons for the sentence imposed does 13 not strictly comply with § 3553(c)(2).

14 As Hall points out, the requirement that the district 15 judge provide a written statement of reasons for the 16 sentence imposed assists in the collection of data by the 17 Bureau of Prisons and the Sentencing Commission. Hall, 499 18 F.3d at 154. That is no doubt to the good. At the same 19 time, there are anomalies: the Hall remand requirement 20 operates only in the Anders context. Hall explicitly 21 recognizes that "parties may waive the section 3553(c)(2) 22 requirement in a non-Anders case." Id. at 156. So, a 23 lawyer who advances appellate arguments (however thin) on 1 behalf of a client does not necessarily open to scrutiny the 2 issue of compliance with § 3553(c)(2). Moreover, Hall may 3 sometimes have the effect of requiring defense counsel to 4 urge this Court to remand when a remand would be of no 5 benefit for the client. This casts the defense lawyer in a 6 role other than that of advocate representing the interests 7 of the client. True, lawyers appointed under the Criminal 8 Justice Act, like all others, are officers of the court; but 9 the remand required by Hall is not one that benefits the 10 courts. Rather, we are setting the lawyer to work for the 11 Bureau of Prisons and the Sentencing Commission, and doing a 12 futile job of it in any event. We are convinced that the 13 bright line rule established in Hall may undermine, rather 14 than serve, the goals of vigorous representation described 15 in Anders. We therefore abrogate the holding of Hall to the 16 extent--but only to the extent--that it uniformly requires 17 remand when the district court fails to provide a written 18 statement of reasons or when that statement fails to 19 "state[] with specificity" the reasons for the sentence 20 imposed. 18 U.S.C. § 3553(c)(2).

21 As Hall warns, it may be speculative "to say that the 22 absence of the written statement would have no effect." 499 23 F.3d at 155. But, the fact that there may be cases where 1 the absence of a written statement could have an effect does 2 not justify the bright line rule; there are other cases in 3 which it is quite clear that the absence of a written 4 statement could not raise a non-frivolous appellate issue. 5 It is hardly speculative to conclude that a remand in this 6 case to require the district court to set down the reasons 7 for a properly imposed, below-Guidelines sentence can confer 8 no benefit on this criminal defendant, who has been 9 sentenced to the statutory minimum.

10 It would be speculative, however, to say that there is 11 no circumstance in which remand for a written statement of 12 reasons will elicit from the district judge observations 13 that are detrimental to a defendant. Quite apart from any 14 facts presented by this case, a sentence might be influenced 15 by cooperation with the authorities, or other things the 16 defendant would not want memorialized in a written judgment.

17 See id. (observing that "circulation through the Bureau of 18 Prisons of a detailed statement of the facts underlying some 19 reasons can present particular concerns, as for example when 20 a statement references sensitive information about crime 21 victims, the defendant, or members of his family"); United 22 States v. Verkhoglyad, 516 F.3d 122, 134 n.9 (2d Cir. 2008). 23 Requiring a defendant's lawyer to elicit such information 24 goes against the grain of advocacy.

All these things considered, it does seem a waste of 2 public funds that Congress appropriated for the defense of 3 those accused and convicted to require a lawyer to perform a 4 role and task that cannot benefit the client. A lawyer 5 should not be compelled to perform if there is no appellate 6 argument to make. At the same time, it is important to 7 acknowledge that if, in a given case, the absence of a 8 written statement of reasons (or the content of that 9 statement) provides an "arguable" basis for appeal, the 10 Anders motion should be denied. Anders, 386 U.S. at 744. 11 The principle in non-Anders cases is that it is the 12 better course--though not required--to remand when the 13 district court does not strictly comply with 18 U.S.C. 14 § 3553(c)(2). E.g., Jones, 460 F.3d at 197; Fuller, 426 15 F.3d at 567; see also, e.g., United States v. Daychild, 357 16 F.3d 1082, 1107 (9th Cir. 2004). So, a lawyer with any 17 appellate argument to make may "waive[] any claim for relief 18 on the basis of deficiencies in the district court's written 19 explanation" of the sentence. United States v. Pereira, 465 20 F.3d 515, 524 (2d Cir. 2006).

21 Nothing about the context of an Anders motion should 22 forbid waiver, except that in the Anders context, our 23 independent review of the record brings non-compliance to 24 our attention. But, a lawyer, acting as an advocate for a 12 1 client and as an officer of the court, should make an 2 independent judgment as to whether deficiencies in a written 3 statement of reasons presents a non-frivolous appellate 4 issue. And, this Court, in reviewing the Anders motion, 5 will determine whether counsel's assessment of an issue "is, 6 in fact, legally correct." United States v. Whitley, 503 7 F.3d 74, 76 (2d Cir. 2007) (per curiam) (internal quotation 8 marks omitted). This process will adequately safeguard a 9 defendant's "Sixth Amendment right to representation by 10 competent counsel." McCoy, 486 U.S. at 436 (observing that 11 the Sixth Amendment right to competent representation is 12 retained on appeal). At the same time, it will ensure that 13 counsel's role is not misdirected by the advancement of 14 frivolous arguments or by advocacy of measures that do not 15 serve the client, and that "the energies of the court or the 16 opposing party," id., are not spent on cases in which an 17 Anders motion should properly be granted.


For the foregoing reasons, we grant defense counsel's 20 motion to be relieved as counsel pursuant to Anders v. 21 California, 386 U.S. 738 (1967). We also grant the 22 government's motion for summary affirmance of this appeal.

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