United States v. Calvin Hill-Gamble

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 16-1155 _____________

UNITED STATES OF AMERICA

v.

CALVIN JAMAR HILL-GAMBLE, Appellant _____________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Crim. No. 1-04-cr-00166-001) District Judge: Honorable Christopher C. Conner ______________

Submitted Under Third Circuit L.A.R. 34.1(a) September 8, 2016 ______________

Before: JORDAN, VANASKIE, and KRAUSE, Circuit Judges.

(Opinion Filed: February 14, 2017) ______________

OPINION * ______________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. VANASKIE, Circuit Judge.

This appeal arises from the revocation of a term of supervised release and the

imposition of a 30-month term of imprisonment. After filing this appeal, Calvin Hill-

Gamble’s counsel filed a Motion for Leave to Withdraw as Counsel and submitted an

Anders Brief in support of the Motion. Hill-Gamble has failed to submit any document to

this Court highlighting a potential appealable issue. Because Hill-Gamble expressly

waived his right to a revocation hearing, he admitted to Grade A violations of his

conditions of supervised release, and the District Court’s sentence was substantively and

procedurally reasonable, we will affirm.

I.

On September 8, 2004, Hill-Gamble pleaded guilty to charges of possessing a

firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c) – a Class A felony – and

distributing and possessing with the intent to distribute five grams or more of cocaine

base, 21 U.S.C. § 841(a)(1) – a Class B felony. 1 On January 28, 2005, the District Court

sentenced Hill-Gamble to a prison term of 108 months, to be followed by a 60-month

period of supervised release. Hill-Gamble began his supervision on December 21, 2012.

1 The classification of offenses not otherwise specified is governed by 18 U.S.C. § 3559. Because Hill-Gamble’s firearms offense carried a maximum prison term of life, it is graded as a Class A felony, 18 U.S.C. § 3559(a)(1). His drug offense carried a Class B designation because the maximum term of imprisonment for that crime exceeded 25 years. 18 U.S.C. § 3559(a)(2). As will be made clear later in this opinion, an offense’s classification affects the United States Sentencing Guidelines advisory imprisonment range upon revocation of supervised release. 2  On August 22, 2014, a Swatara Township police officer stopped a vehicle in

which Hill-Gamble was a passenger. Two other individuals were in the vehicle with

Hill-Gamble. As the officer approached the vehicle, Hill-Gamble and the other passenger

fled on foot. The officer took the driver into custody. A search of the vehicle revealed a

bag of cocaine base and heroin, three handguns, five pairs of gloves, three black masks,

and a bag of ammunition. Eight days later, police arrested Hill-Gamble, charging him

with firearm and drug offenses under state law. After a trial in state court in October

2015, a jury found Hill-Gamble guilty of the firearm and drug offenses.

Based upon Hill-Gamble’s state court convictions on the firearm and drug

offenses, the United States Probation Office petitioned for revocation of supervised

release. The District Court held a revocation hearing on January 7, 2016.

At the revocation proceeding, the District Court conducted a colloquy, assuring

that Hill-Gamble understood the nature of the proceedings and his rights. Hill-Gamble

waived his right to a hearing and admitted to Grade A violations of the terms of his

supervised release. Given Hill-Gamble’s criminal history category of III and his

admission of Grade A violations, the advisory Sentencing Guidelines imprisonment range

for his underlying Class A felony was 30 to 37 months, and the advisory range for his

Class B felony was 18 to 24 months. See U.S.S.G. § 7B1.4(a). After listening to the

prosecutor, defense counsel, Hill-Gamble, and Hill-Gamble’s mother, the District Court

revoked supervised release and imposed a prison term of 30 months on the underlying

Class A felony, and a prison term of 18 months on the underlying Class B felony, to be

3 served concurrently but consecutive to Gamble-Hill’s state court sentence. This appeal

followed. 2

II.

Hill-Gamble’s counsel seeks permission to withdraw pursuant to the Supreme

Court’s decision in Anders v. California, 386 U.S. 738 (1967), and Rule 109.2 of this

Court’s Local Appellate Rules. Consistent with the Anders decision, counsel for a

defendant may seek to withdraw in this Court if, after reviewing the District Court record,

he or she is “persuaded that the appeal presents no issue of even arguable merit.” 3d Cir.

L.A.R. 109.2(a). To do so, counsel is required “(1) to satisfy the court that counsel has

thoroughly examined the record in search of appealable issues, and (2) to explain why the

issues are frivolous.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001) (citation

omitted). Our responsibility is to determine “(1) whether counsel adequately fulfilled

[Rule 109.2(a)’s] requirements; and (2) whether an independent review of the record

presents any nonfrivolous issues.” Id. (citations omitted). When reviewing the record,

“we confine our scrutiny to those portions of the record identified by an adequate Anders

brief” and “those issues raised in Appellant’s pro se brief.” Id. at 301.

Though he was informed of his right to file a pro se brief, Hill-Gamble has failed

to submit any document to this Court since his notice of appeal. Hill-Gamble’s counsel,

2 The District Court had jurisdiction under 18 U.S.C. §§ 3231 and 3583. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

4 however, has examined the record and identified four potentially appealable issues: (1)

the jurisdiction of the court, (2) the adequacy of the proof underlying the violation, (3)

the voluntariness of the admission to the violation, and (4) the reasonableness of the

sentence. As discussed below, we find that Hill-Gamble’s counsel has identified all

appealable issues and that there are no non-frivolous issues for appeal.

A. The District Court’s Jurisdiction

Because the conduct underlying Hill-Gamble’s 2004 federal conviction occurred

within the Middle District of Pennsylvania, the District Court had jurisdiction under 18

U.S.C. § 3231. In connection with Hill-Gamble’s sentence in that matter, the District

Court had the authority to terminate, extend, revoke, or modify Hill-Gamble’s term of

supervised relief, pursuant to 18 U.S.C. § 3583(e). Accordingly, we find that there is no

basis to challenge the District Court’s jurisdiction.

B. Adequacy of Proof of the Supervised Release Violation

Before revoking a term of supervised release, the District Court was required to

“find[] by a preponderance of the evidence that the defendant violated a condition of

supervised release.” 18 U.S.C. § 3583(e)(3). Here, Hill-Gamble admitted to Grade A

violations of his terms of supervised release. Moreover, even without the admission,

Hill-Gamble’s state court conviction for the state firearm and drug offenses would have

been adequate proof as to the supervised release violations. See United States v. Lloyd,

566 F.3d 341, 344 (3d Cir. 2009). Therefore, we also find that any challenge to the

adequacy of proof underlying the revocation of supervised release would be meritless.

5  C. Voluntariness of the Admission

Because Hill-Gamble admitted to violating the terms of his supervised release, this

“inquiry is . . . confined to whether the underlying plea was both counseled and

voluntary.” United States v. Broce, 488 U.S. 563, 569 (1989). We assess whether an

admission to violating supervised release was knowing and voluntary given the totality of

the circumstances. See United States v. Hodges, 460 F.3d 646, 652 (5th Cir. 2006).

Hill-Gamble was represented by counsel, and the District Court conducted a

thorough colloquy, assuring that Hill-Gamble understood the nature of the proceedings

and his rights. The District Court also confirmed that Hill-Gamble desired to waive his

right to a revocation hearing and to admit to Grade A violations. Hill-Gamble explained

that he was remorseful and disappointed in himself for violating the terms of supervised

release, and asked for leniency at sentencing. In light of these facts, we find that any

claim that Hill-Gamble did not knowingly and voluntarily admit the supervised release

violation would be frivolous.

D. Reasonableness of the Sentence

Finally, we find that any attack on the reasonableness of the sentence would be

meritless. In the context of revocation sentences, we examine the record to determine

whether the District Court gave meaningful consideration to the factors set forth in 18

U.S.C. § 3553(a) and § 3583(e). See United States v. Bungar, 478 F.3d 540, 542-44 (3d

Cir. 2007) (citations omitted). We must also be satisfied that the “sentencing court . . .

reasonably applied those factors to the circumstances of the case.” Id. at 543. Our

6 review of the record confirms that the District Court gave adequate consideration to all

the pertinent factors and articulated a rational explanation for why the sentence it

imposed in this matter was appropriate. We also note that the Sentencing Guidelines

recommend that a revocation term of imprisonment be served consecutively to the

conviction that has prompted revocation of supervised release. See U.S.S.G § 7B1.3(f).

Under these circumstances, we conclude that any challenge to the reasonableness of the

revocation sentence would be frivolous.

III.

For the reasons set forth herein, we will affirm the judgment of the District Court

and grant the request to withdraw as counsel.

7