United States v. Herrera , 78 F. App'x 804 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
10-24-2003
USA v. Herrera
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-1628
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"USA v. Herrera" (2003). 2003 Decisions. Paper 189.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/189
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 02-1628
UNITED STATES OF AMERICA
v.
FLOR HERRERA,
Appellant
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. Action No. 01-cr-00030-3)
District Judge: Honorable Harvey Bartle, III
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 17, 2003
BEFORE: SLOVITER, ROTH and STAPLETON, Circuit Judges
(Opinion Filed: October 24, 2003)
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Flor Herrera pled guilty to four drug offenses. He was given a
concurrent sentence on all counts of 96 months of incarceration and six years of
supervised release.
Following the filing of the notice of appeal, defense counsel filed a motion
to withdraw as counsel and a brief in support of this motion pursuant to the decision in
Anders v. California, 386 U.S. 738 (1967). Through these submissions, we are advised
that “there is no non-frivolous issue that can be raised on [Herrera’s] behalf. . . .” Herrera
was provided with a copy of the motion and the brief and was given an opportunity to file
a pro se brief. He did not avail himself of this opportunity.
In accordance with the mandate established in Anders, we have conducted
an independent examination of the record before us in order to determine whether it
presents any non-frivolous issue. Because we conclude that it does not, we will affirm
the judgment of the District Court. We will also grant defense counsel’s motion to
withdraw.
In his Anders brief, counsel identifies three issues as arguably non-
frivolous: (1) whether there was insufficient evidence to support the conviction; (2)
whether appellant’s plea was knowing, intelligent, and voluntary; and (3) whether the
sentence was improper.1
1
Without saying whether Herrera wished to raise the issue, or whether there is any
basis for it, counsel noted that he was trial counsel and could not raise his own
2
On the basis of our review, we are satisfied that all three of these issues are
without merit. The government’s evidence established beyond peradventure that Herrera
was a member of a conspiracy that sold bulk quantities of drugs from July of 2000 until
January of 2001. That evidence consisted of tapes and purchases by undercover agents
and cooperating witnesses. Also, a search conducted pursuant to a valid warrant resulted
in the seizure of 13.5 grams of heroin and 119.4 grams of crack cocaine, which could be
linked to appellant.
The transcript of the plea hearing shows that the Court meticulously
reviewed with the defendant his rights, the nature and extent of the rights that he was
waiving, his satisfaction with his attorney, the potential penalties he faced, the evidence
the government had against him, and the nature of the sentencing guideline calculations in
his case. Herrera’s plea was clearly knowing, intelligent, and voluntary.
With respect to sentencing, the probation office adopted the stipulations of
the parties, and the Court adopted the findings of the probation office. The calculation of
the Guidelines range was in accordance with those guidelines. The Court granted the
government’s motions to depart from the statutory minimum sentence and departed
downward from the Sentencing Guidelines. The District Court imposed a sentence that
was 72 months less than the minimum of the applicable range and was two years less than
the mandatory minimum sentence. There thus is no non-frivolous basis to argue that the
ineffectiveness as a basis for appeal.
3
sentence was illegal.
The judgment of the District Court will be affirmed. Counsel’s motion to
withdraw will be granted.
4
TO THE CLERK:
Please file the foregoing Not Precedential Opinion.
/s/ Walter K. Stapleton
____________________________
Circuit Judge
5