United States v. Norberto Herrera , 320 F. App'x 139 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
3-31-2009
USA v. Norberto Herrera
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4632
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-4632
_____________
UNITED STATES OF AMERICA
v.
NORBERTO HERRERA,
Appellant
_____________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. Crim. No. 07-00478)
Magistrate Judge: Patty Schwartz
District Judge: Honorable Faith S. Hochberg
_____________
Submitted Under Third Circuit L.A.R. 34.1(a)
on March 10, 2009
Before: FUENTES, CHAGARES and ALDISERT, Circuit Judges.
(Opinion Filed: March 31, 2009 )
_____________
OPINION OF THE COURT
ALDISERT, Circuit Judge.
Appellant Norberto Herrera’s attorney has filed a motion to withdraw as appellate
counsel in this case, and has filed a brief in support thereof under Anders v. California,
386 U.S. 738 (1967). Counsel contends that there are no nonfrivolous issues that can be
raised on appeal by Herrera, who, in conjunction with a plea agreement reached with the
government, pled guilty to conspiracy to distribute methamphetamine, contrary to 21
U.S.C. §§ 841(a) & (b)(1)(B), in violation of 21 U.S.C. § 846. We agree. Accordingly, we
will affirm the decision of the District Court of the District of New Jersey and we will
grant counsel’s Anders motion.
I.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
We exercise plenary review to determine whether there are any nonfrivolous issues
on appeal. Penson v. Ohio, 488 U.S. 75, 80 (1988). The determination of frivolousness is
informed by the standard of review for each potential claim raised. See, e.g., United
States v. Schuh, 289 F.3d 968, 974-976 (7th Cir. 2002).
Because we write only for the parties, who are familiar with the facts, procedural
history and contentions presented, we will not recite them except as necessary to the
discussion.
II.
Anders provides that “if counsel finds his case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request permission to
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withdraw.” 386 U.S. at 744. “That request must, however, be accompanied by a brief
referring to anything in the record that might arguably support the appeal.” Id. This Court
implements Anders via our Local Appellate Rule 109.2(a), which sets forth the following
procedure:
Where, upon review of the district court record, counsel is persuaded that
the appeal presents no issue of even arguable merit, counsel may file a
motion to withdraw and supporting brief pursuant to Anders v. California,
386 U.S. 738 (1967), which must be served upon the appellant and the
United States. The United States must file a brief in response. Appellant
may also file a brief in response pro se. . . . If the panel agrees that the
appeal is without merit, it will grant counsel’s Anders motion, and dispose
of the appeal without appointing new counsel.
3d Cir. L.A.R. 109.2(a).
This Court’s inquiry is twofold when an Anders motion is brought. First, we must
determine whether counsel has adequately fulfilled the obligations imposed by L.A.R.
109.2(a). United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Counsel’s Anders
brief must (1) “satisfy the court that counsel has thoroughly examined the record in search
of appealable issues,” id. at 300; (2) identify any “issue[s] arguably supporting the appeal
even though the appeal was wholly frivolous,” Smith v. Robbins, 528 U.S. 259, 285
(2000); and (3) “explain why the issues are frivolous,” United States v. Marvin, 211 F.3d
778, 780 (3d Cir. 2000). Second, we must independently review the record to confirm that
the appeal does not present any nonfrivolous issues. Youla, 241 F.3d at 300. In so doing,
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.
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Pursuant to Anders and our local rule, counsel submitted a brief arguing that there
are no nonfrivolous arguments on appeal and filed a motion seeking to withdraw as
counsel; the government responded. A copy of defense counsel’s brief was furnished to
Herrera, who was given time to raise any non-frivolous arguments in a pro se brief in
response. See Anders, 386 U.S. at 744; 3d Cir. L.A.R. 109.2(a) (2002). Herrera has failed
to file such a brief. We have examined the briefs of counsel and conclude that none of
the issues that could be raised are nonfrivolous, and our own review of the record reveals
no other nonfrivolous issues.
This Court’s first inquiry is “whether counsel adequately fulfilled [Rule 109.2’s]
requirements.” Youla, 241 F.3d at 300. Here, defense counsel has filed a motion to
withdraw and an Anders brief, stating that counsel has reviewed the record, identified
three potential issues, and determined that these issues are frivolous. Defense Counsel’s
Anders Brief (“DB”) 9-19. Thus, defense counsel appears to have fulfilled Rule 109.2’s
requirements adequately.
“Where the Anders brief initially appears adequate on its face,” this Court then
inquires “whether an independent review of the record presents any nonfrivolous issues.”
Youla, 241 F.3d at 300-301. In this second inquiry, this Court confines its scrutiny to
those issues and “those portions of the record identified by an adequate Anders brief”
and, if applicable, to “those issues raised in Appellant’s pro se brief.” Id. at 301 (citing
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United States v. Wagner, 103 F.3d 551, 552-553 (7th Cir. 1996)).1 If this inquiry shows
that the identified issues are frivolous, the appeal is “wholly frivolous.” Youla, 241 F.3d
at 299; see id. at 301 (“An appeal on a matter of law is frivolous where ‘[none] of the
legal points [are] arguable on their merits.’”) (citation omitted); see also McCoy v. Court
of Appeals of Wisconsin, 486 U.S. 429, 438 n.10 (1988) (an appeal is frivolous if “the
appeal lacks any basis in law or fact”).
III.
We agree with defense counsel and the United States that the issues identified by
defense counsel lack any basis in law or fact. First, any challenge to Herrera’s guilty plea
hearing would be frivolous. The Magistrate Judge engaged in an extensive colloquy that
covered all of the necessary requirements of Rule 11 of the Federal Rules of Criminal
Procedure, and determined that there was a factual basis for Herrera’s guilty plea, which
was knowingly and voluntarily entered. Appendix (“App.”) 36-64. By order, the District
Court, after reviewing the guilty plea transcript and the Magistrate Judge’s report and
recommendation, accepted Herrera’s plea. App. 33. Accordingly, we are satisfied that the
1
In Wagner, the Seventh Circuit concluded that it would be inappropriate for a
Court of Appeals “to comb the record . . . searching for possible non-frivolous issues that
both the lawyer and his client may have overlooked”; instead, the court will “confine our
scrutiny of the record to the portions of it that relate to the issues discussed in the brief,”
and “the court’s duty is merely to determine whether counsel is correct in believing those
grounds frivolous.” Wagner, 103 F.3d at 552-553. This Court has adopted the Seventh
Circuit’s approach. Youla, 241 F.3d at 301; see Marvin, 211 F.3d at 780 n.3 (stating that
“this approach appears sound”).
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record in this case supports the determination of the District Court that Lee made a
knowing, intelligent and voluntary guilty plea supported by a factual basis, as required by
Rule 11 of the Federal Rules of Civil Procedure and the constitutional requirements of
Boykin v. Alabama, 395 U.S. 238 (1969), and we conclude that any challenge to the
guilty plea would be frivolous. See United States v. Schweitzer, 454 F.3d 197, 202-203
(3d Cir. 2006) (finding challenge to guilty plea “wholly baseless” where district court had
engaged in comprehensive admonitions and warnings pursuant to Rule 11, identified
factual basis for the plea, and received multiple verbal assurances of defendant’s
understanding of plea’s ramifications); see also United States v. Lessner, 498 F.3d 185,
192-198 (3d Cir. 2007).
Second, any challenge to Herrera’s sentencing hearing would be frivolous. At
sentencing, the District Court heard from Herrera and his counsel at length, engaged in
the three-step sentencing analysis that has been announced by this Court (see United
States v. Gunter, 527 F.3d 282, 285 (3d Cir. 2008)), and, after considering the arguments
of both parties and the 18 U.S.C. § 3553(a) factors, imposed a sentence more than twenty
months below the advisory Sentencing Guidelines range. App. 9, 14-29. Such
consideration meets this Court’s requirements following United States v. Booker, 543
U.S. 220 (2005). See, e.g., United States v. Charles, 467 F.3d 828, 831-834 (3d Cir.
2006).
Finally, any appeal of the sentence would be additionally frivolous because
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Herrera agreed that a sentence within offense level 23 was reasonable, and further agreed
not to appeal such a sentence. App. 71-72. The sentence imposed here fell a full ten
months below that range, and therefore an appeal on this basis is waived and any
challenge would be frivolous. See United States v. Gwinnett, 483 F.3d 200, 205-206 (3d
Cir. 2007); United States v. Khattak, 273 F.3d 557, 563 (3d Cir, 2001) (“Waivers of
appeal, if entered knowingly and voluntarily, are valid unless they work a miscarriage of
justice.”).
*****
We have considered all of the arguments advanced by the parties and conclude that
no further discussion is necessary. We are satisfied that counsel has comprehensively
examined the record and fulfilled the requirements of Anders and L.A.R. 109.2(a). Our
independent review of the record likewise does not reveal any nonfrivolous issues to be
asserted on appeal. The judgment of the District Court will be affirmed and we will grant
counsel’s motion to withdraw. Because the issues presented in the appeal lack legal merit,
they do not require the filing of a petition for writ of certiorari with the U.S. Supreme
Court.
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