United States v. Mendez , 78 F. App'x 806 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
10-24-2003
USA v. Mendez
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-2489
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 02-2489
UNITED STATES OF AMERICA
v.
MARTIRES NOVA M ENDEZ
a/k/a HIJO
a/k/a NOVAS MENDEZ
a/k/a MARTIRES NOVA PEREZ
Martires Nova Mendez,
Appellant
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. Action No. 01-cr-00030-1)
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 Maitres Nova M endez pled guilty to conspiracy to distribute
more than one kilogram of heroin in violation of 21 U.S.C. § 846, distribution and aiding
and abetting the distribution of heroin within 1000 feet of a school in violation of 21
U.S.C. §§ 860 and 862, aggravated illegal reentry after deportation in violation of 8
U.S.C. § 1326(a)(b)(2), and being a felon in possession of a gun in violation of 18 U.S.C.
§ 922(g). He was sentenced to 100 months of imprisonment, to be followed by 10 years
of supervised release.
After filing a timely appeal, defense counsel filed a motion to withdraw as
counsel and a brief in support of that motion pursuant to Anders v. California, 386 U.S.
738 (1967). Defense counsel determined after a conscientious review of the record that
“there are no non-frivolous issues for review.”
In accordance with the mandate of Anders, we have performed an
independent review of the record 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 and grant defense counsel’s motion to withdraw.
For the reasons set forth in counsel’s brief, the record demonstrates that the
District Court had jurisdiction to accept Nova Mendez’s pleas, that those pleas were
knowing, intelligent, and voluntary, and that his sentence was consistent with the
Guidelines.
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In Nova M endez’s supplemental pro se brief, he advances three arguments:
(1) the U.S.C.G. § 2D1.1(b)(1) enhancement for possession of a firearm in connection
with a drug offense was not supported by the record; (2) the § 3B1.1(c) enhancement for
a leadership role was not supported by the record; and (3) trial counsel was ineffective in
suggesting to him that the government would seek a “safety valve” reduction under 18
U.S.C. § 3553(f).1
Under § 2D1.1, app. note 3, if a weapon is present, the gun enhancement
should be applied “unless it is clearly improbable that the weapon was connected to the
offense.” The conspiracy to market drugs in bulk was on-going when Nova Mendez was
arrested at his home early on the morning of January 18, 2001. A handgun loaded with
six rounds of hollow point ammunition was found at that time under the clothes in his
bedroom. Given the nature of the weapon, the nature of the ammunition, Nova Mendez’s
ready access to the gun, and the illegality of his possession of it (both because of his prior
convictions and his status as an illegal alien), the District Court cannot be faulted for
declining to find improbable a connection between the weapon and Nova Mendez’s drug
distribution.
Nova Mendez was at the center of the distribution conspiracy, and the
1
Nova Mendez also points to a reference in the plea agreement to U.S.S.G. Ҥ
2D1.2(b)(1),” a subsection that does not exist, and suggests that he was not sentenced
under “the guideline most applicable to the offense of conviction.” The plea agreement
reference, viewed in context, is clearly a typographical error for § 2D1.1(b)(1). More
importantly, the presentence report, adopted by the District Court, correctly identified the
Guideline section under which the gun enhancement was imposed, i.e., § 2D1.1(b)(1).
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enhancement for a leadership role is also and amply supported by the record. That was
undoubtedly why he stipulated in his plea agreement that such an enhancement was
appropriate.
Nova Mendez’s ineffective assistance of counsel claim is not ripe for
review. While he implies that his attorney misled him in discussing the consequences of
his plea, there is no record regarding any conversation between the defendant and his
attorney. If the claim is to be pursued, it will have to be in a § 2255 proceeding where an
appropriate record can be developed.
The judgment of the District Court will be AFFIRMED, and counsel’s
motion to withdraw will be granted.
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TO THE CLERK:
Please file the foregoing Not Precedential Opinion.
/s/ Walter K. Stapleton
Circuit Judge
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