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In Re: Mark-Brian Kline

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USA v. David Dupree

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USA v. Fitzgerald Daliot-Rios

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Deanna Scarbo v. Royal Athena

Joshua Otero v. Christian         Kane

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Todd Ferry v. Pace

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In Re: Kevino Graham

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2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
1-3-2025 
USA v. Tashawn Warner 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 23-2148 
 
____________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
TASHAWN T.A. WARNER, 
Appellant 
____________ 
 
On Appeal from the District Court 
of the Virgin Islands 
(D.C. Crim. No. 3:20-cr-00036-002) 
District Judge:  Honorable Juan R. Sánchez 
____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
December 9, 2024 
____________ 
 
Before:  CHAGARES, Chief Judge, MONTGOMERY-REEVES, and FISHER, Circuit 
Judges 
 
(Filed: January 3, 2025) 
____________ 
 
OPINION* 
____________ 
 
*  This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not 
constitute binding precedent. 
2 
CHAGARES, Chief Judge. 
 Tashawn T.A. Warner was sentenced to 135 months of imprisonment after 
pleading guilty to conspiring to commit a Hobbs Act robbery.  His attorney has filed a 
motion to withdraw under Anders v. California, 386 U.S. 738 (1967).  For the reasons 
below, we will grant the motion and affirm the judgment of sentence.   
I. 
 We write primarily for the parties and so recite only those facts pertinent to our 
decision.  Warner and his co-conspirators robbed a jewelry store in the Virgin Islands in 
September 2020.  Warner brandished a firearm and threatened the store employees, while 
one of his accomplices struck an employee in the head with his firearm.  They broke the 
glass showcases, stole a large quantity of jewelry, and fled the scene.  
 A grand jury returned an indictment on November 19, 2021, charging Warner and 
his co-conspirators with thirteen violations of both federal and Virgin Islands criminal 
law.  Warner was charged with three federal crimes, including committing and conspiring 
to commit Hobbs Act robbery and possessing a firearm during and in relation to a crime 
of violence.  The indictment also charged him with several violations of Virgin Islands 
criminal law, including robbery, possession of a firearm with intent to commit a crime of 
violence, grand larceny, and unlawful possession of firearms and ammunition.  Warner 
entered into a plea agreement, under which he pled guilty to conspiring to commit a 
Hobbs Act robbery, which carries a maximum penalty of twenty years of imprisonment.  
18 U.S.C. § 1951(a).  The agreement calculated a sentencing range of 78 to 97 months of 
imprisonment under the United States Sentencing Guidelines (“Guidelines”), assuming 
3 
that a Category I criminal history would apply.  Warner waived his right to appeal his 
sentence in the plea agreement but retained the right to assert an ineffective assistance of 
counsel claim.   
After the presentence report applied a Category II criminal history, however, the 
Government filed a sentencing memorandum that advocated for an increased sentencing 
range of 108 to 135 months of imprisonment.  Defense counsel moved to withdraw from 
the plea agreement, alleging that it was “predicated on fraud in the inducement.”  
Appendix (“App.”) 172.  The District Court dismissed this motion, holding that the plea 
agreement provided that the Government could update its recommendation if Warner’s 
criminal history category was increased.  The District Court also noted that the criminal 
conduct contributing to Warner’s increased criminal history, a pardoned conviction of 
simple possession of marijuana, was properly included, as “the U.S. Sentencing 
Commission requires that pardoned sentences be counted in the computation of criminal 
history points.”  App. 177 n.2 (citing U.S.S.G. § 4A1.2 cmt. n.10).   
The District Court sentenced Warner to 135 months of imprisonment on January 
5, 2023.  This sentence was based on a final offense level of 30 and a Category II 
criminal history, for which the Guidelines recommended 108 to 135 months of 
imprisonment.  The District Court noted that even if defense counsel were correct that a 
lower range should apply, “the 135 [months] is appropriate.”  App. 57.  Judgment was 
entered on January 17, 2023.  
  Warner handwrote a pro se motion, titled “Motion to Appeal for Ineffective 
Counsel,” on January 26, 2023, via an envelope postmarked on January 30.  Though its 
4 
title contains the word “appeal,” Warner’s requested relief was that “the court appoint 
new counsel from the Criminal Justice Act Panel.”  Gov’t Supp. App. 8–9.  The District 
Court never docketed this as a notice of appeal, but rather as a motion to appoint new 
counsel.  
Warner handwrote another pro se motion on June 4, 2023, postmarked the next 
day.  In this motion, Warner wrote that he “would like to appeal [the] case under the 
Section 2255 motion” and requested court-appointed counsel.  App. 1.  This motion was 
docketed as a notice of appeal.  Warner’s attorney now seeks to withdraw, alleging that 
there is no viable basis for appeal.  The Government agrees.   
II.1 
 Under Anders, court-appointed counsel may — after finding any appeal “to be 
wholly frivolous” after careful examination of the record — file a brief so “advis[ing] the 
court and request[ing] permission to withdraw.”  386 U.S. at 744.  This Court must 
consider “1) whether counsel adequately fulfilled the requirements of Third Circuit Local 
Appellate Rule 109.2(a), and 2) whether an independent review of the record presents 
any nonfrivolous issues.”  Simon v. Gov’t of Virgin Islands, 679 F.3d 109, 114 (3d Cir. 
2012).  We “exercise plenary review to determine whether there are any such issues” and 
review factual findings for clear error.  Id.  Forfeited issues, however, are reviewed for 
plain error.  See United States v. Brito, 979 F.3d 185, 190 (3d Cir. 2020). 
 
1 The District Court had jurisdiction under 18 U.S.C. § 3231 and 48 U.S.C. § 1612(c).  
We have jurisdiction to review Warner’s conviction and sentence under 28 U.S.C. § 1291 
and 18 U.S.C. § 3742(a).   
5 
The withdrawing counsel’s brief must “satisfy the court that counsel has 
thoroughly examined the record in search of appealable issues” and “explain why the 
issues are frivolous.”  United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).  An 
appeal is frivolous if “the appeal lacks any basis in law or fact.”  McCoy v. Ct. of 
Appeals of Wis., Dist. 1, 486 U.S. 429, 438 n.10 (1988).  If “the Anders brief initially 
appears adequate on its face,” the second step of our inquiry is guided “by the Anders 
brief itself.”  Youla, 241 F.3d at 301 (quotation omitted).  “[A] complete scouring of the 
record” is unnecessary.  Id. 
Because the Anders brief is facially adequate, we confine our review to the issues 
identified by the brief.  Warner’s counsel has identified four main areas of review:  (1) 
whether Warner’s appeal was timely; (2) whether the calculation of the recommended 
sentencing range under the Guidelines was correct; (3) whether Warner’s change of plea 
and appellate waiver were valid; and (4) whether the District Court’s sentence was 
reasonable.  Warner did not file a pro se brief in response.  
A. 
We first consider whether Warner’s appeal is timely.  Criminal defendants have 
fourteen days to appeal after entry of judgment.  Fed. R. App. P. 4(b)(1)(A).  A pro se 
prisoner’s notice of appeal is considered filed once it is delivered to prison authorities to 
send to the district court.  Id. 4(c)(1).  While Warner’s counsel examines only the letter 
that Warner sent on June 5, the Government disagrees and suggests that “there appears to 
be a non-frivolous argument that the earlier filing [on January 30] was a timely notice of 
appeal.”  Gov’t Br. 22.   
6 
We agree with the Government that Warner’s appeal is timely.  “The duty to 
construe appeal notices liberally is heightened in cases involving pro se appellants.”  
Gov’t of Virgin Islands v. Mills, 634 F.3d 746, 751 (3d Cir. 2011).  This Court “will 
deem a document filed by a pro se litigant . . . to be a notice of appeal despite informality 
in its form or title, if it evidences an intention to appeal.”  3d Cir. L.A.R. 3.4 (2011).  
While the focus of Warner’s first handwritten motion was appointment of counsel, it 
unambiguously refers to an appeal in its title and his objection to the sentencing.  Because 
Warner’s filing was postmarked for January 30 regarding the entry of judgment on 
January 17, his appeal was within the fourteen-day time limit.2  See Fed. R. App. P. 
4(c)(1)(A)(ii) (noting that a postmark will suffice as proof of timeliness).  
B. 
Because Warner’s appeal was timely, we next discuss whether Warner’s 
sentencing range was properly calculated.  Defense counsel and the Government agree 
that Warner’s pardoned conviction for simple marijuana possession was properly 
incorporated into the sentencing recommendation under the Guidelines.  For the reasons 
set forth below, we agree. 
 
2 To the extent that Warner appeals on the basis of ineffective assistance of counsel, 
which he has not waived in his plea agreement, this Court typically does not consider 
such claims on direct appeal.  See Gov’t of Virgin Islands v. Zepp, 748 F.2d 125, 133 (3d 
Cir. 1984) (“[S]uch claims frequently involve questions regarding conduct that occurred 
outside the purview of the district court and therefore can be resolved only after a factual 
development at an appropriate hearing.” (quoting United States v. Swinehart, 617 F.2d 
336, 340 (3d Cir. 1980))).  A collateral proceeding is better suited to addressing those 
claims, and we therefore do not consider them here.  
7 
Two years ago, President Biden pardoned all United States citizens and lawful 
permanent residents who, before the proclamation, had “been convicted of the offense of 
simple possession of marijuana” in violation of 21 U.S.C. § 844.  Proclamation No. 
10467, 87 Fed. Reg. 61441, 61441 (Oct. 6, 2022).  This pardon included Warner, who 
was convicted of simple marijuana possession in November 2021.  But the Guidelines 
provide for pardoned convictions when computing criminal history.  While “expunged 
convictions are not counted,” sentences that are “pardoned for reasons unrelated to 
innocence or errors of law, e.g., in order to restore civil rights or to remove the stigma 
associated with a criminal conviction . . . are to be counted.”  U.S.S.G. § 4A1.2 cmt. n.10.   
The District Court correctly held that Warner’s pardoned conduct should be 
considered in its criminal history calculation.  Warner’s prior conviction was neither 
expunged nor pardoned for reasons of innocence or legal error.  And despite defense 
counsel’s contentions at sentencing, the plea agreement contemplates adjusting the 
recommended sentence if Warner’s criminal history exceeded Category I.  
C. 
Finally, we examine the propriety of Warner’s guilty plea and sentence.  Warner’s 
counsel and the Government agree that Warner’s plea and appellate waiver were valid.  
After a review of the District Court’s thorough colloquy with Warner at the change of 
plea hearing, we concur.  “Waivers of appeals, if entered into knowingly and voluntarily, 
are valid, unless they work a miscarriage of justice.”  United States v. Khattak, 273 F.3d 
557, 563 (3d Cir. 2001).  Both Warner’s guilty plea and waiver were valid, knowing, and 
voluntary.  The District Court discussed the appellate waiver provisions of the plea 
8 
agreement during its colloquy under Federal Rule of Criminal Procedure 11 and 
reminded Warner of the waiver provisions at sentencing.  We thus perceive no potential 
error amounting to a miscarriage of justice.   
We also examine whether Warner’s sentence was reasonable.  We review the 
reasonableness of a sentence for abuse of discretion and will not reverse unless no 
reasonable court would have imposed such a sentence.  United States v. Tomko, 562 F.3d 
558, 567–68 (3d Cir. 2009) (en banc).  A sentencing court must follow three procedural 
steps:  (1) calculate the appropriate Guidelines range; (2) rule on any departure motions; 
and (3) exercise discretion by considering the relevant 18 U.S.C. § 3553(a) factors.  See 
United States v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc).  We discern 
no procedural or substantive error here.  The District Court heard from the Government, 
defense counsel, and Warner; correctly calculated the Guidelines range; and considered 
the § 3553(a) factors.3  The court then reasonably applied the § 3553(a) factors to this 
case by imposing a sentence of 135 months of imprisonment, which was within the 
statutory maximum of twenty years.  18 U.S.C. § 1951(a).  This sentence was reasonable 
in light of the physical, emotional, and financial harm Warner inflicted during the jewelry 
store robbery.   
III. 
For the foregoing reasons, we will grant counsel’s motion to withdraw and will 
affirm the District Court’s judgment of sentence.  In addition, we certify that the issues 
 
3 There were no departure motions.   
9 
presented lack legal merit and that counsel is not required to file a petition for writ of 
certiorari with the Supreme Court.  3d Cir. L.A.R. 109.2(b) (2011). 


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