United States v. Anibal Peralte , 464 F. App'x 55 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-2326
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UNITED STATES OF AMERICA
v.
ANIBAL PERALTE,
a/k/a Aniba Meriza
ANIBAL PERALTE,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-10-cr-00227-001)
District Judge: Honorable William W. Caldwell
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Submitted Pursuant to Third Circuit LAR 34.1(a)
January 24, 2012
Before: McKEE, Chief Judge, FISHER and GREENAWAY, JR., Circuit Judges.
(Filed: February 28, 2012 )
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Anibal Peralte appeals from the judgment of conviction and sentence entered in
the United States District Court for the Middle District of Pennsylvania. Counsel for
Peralte, pursuant to Anders v. California, 386 U.S. 738 (1966), filed an Anders brief
explaining in detail that there are no non-frivolous issues on appeal. Counsel has
additionally filed a motion with this Court seeking leave to withdraw. Peralte did not file
a response to Counsel’s brief and motion.
For the reasons discussed below, we will affirm the judgment of the District Court
and grant defense counsel’s motion to withdraw.
I.
We write principally for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
On July 28, 2010, Peralte was arrested by agents of the Drug Enforcement
Administration. A two-count federal indictment followed. Count 1 charged Peralte with
distribution and possession with intent to distribute heroin and cocaine hydrochloride, in
violation of 21 U.S.C. § 841(a)(1). Count 2 charged Peralte with illegal reentry after
deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2), as well as 6 U.S.C. § 202(3) –
(4), and § 557. On November 5, 2010, pursuant to a plea agreement, Peralte pled guilty
to both counts. Paragraph 22 of the plea agreement specified that Peralte waived his
“right to appeal any conviction and sentence . . . on any and all grounds set forth in [18
U.S.C. § 3742] or any other grounds, constitutional or non-constitutional[.]” The waiver
provision also precluded his right to collateral appeal under 28 U.S.C. § 2255.
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At sentencing on May 3, 2011, the District Court identified the applicable
Sentencing Guidelines range as 57 to 71 months’ imprisonment. The District Court
denied Peralte’s motion for a downward “safety valve” adjustment based on U.S.S.G.
§ 5C1.2, but granted a variance to eliminate any sentencing disparity that might have
been caused by the lack of a “fast-track program” that is sometimes available in
immigration cases. As a result, Peralte was sentenced to serve concurrent sentences of 51
months on Count 1 and 24 months on Count 2. He timely appealed.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291.
Pursuant to Anders, counsel may seek to withdraw representation if, after
reviewing the District Court’s record, he or she is “persuaded that the appeal presents no
issue of even arguable merit.” 3d Cir. L.A.R. 109.2(a); see United States v. Youla, 241
F.3d 296, 300 (3d Cir. 2001) (“Third Circuit Local Appellate Rule 109.2(a) reflects the
guidelines the Supreme Court promulgated in Anders . . . .”). We exercise plenary review
in determining whether any non-frivolous arguments remain. See Penson v. Ohio, 488
U.S. 75, 82-84 & n.6 (1988). To grant counsel’s request, we must be satisfied that
counsel “has thoroughly scoured the record in search of appealable issues and . . .
explain[ed] why the issues are frivolous.” United States v. Coleman, 575 F.3d 316, 319
(3d Cir. 2009) (internal quotation marks and citation omitted). Our “inquiry when
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counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled
the . . . requirements [of 3d Cir. L.A.R. 109.2(a)]; and (2) whether an independent review
of the record presents any nonfrivolous issues.” Youla, 241 F.3d at 300 (citation
omitted). If we determine that “the Anders brief initially appears adequate on its face,”
the second step of our inquiry is “guided . . . by the Anders brief itself.” Id. at 301(quotation marks and citation omitted).
III.
Counsel for Peralte identified three potential issues for appeal: (1) the District
Court’s denial of a two-level safety valve adjustment pursuant to U.S.S.G. § 5C1.2(a)(5);
(2) the sufficiency of the evidence supporting Peralte’s plea of guilty on both charges;
and (3) the validity of Peralte’s appellate waiver. Counsel ultimately concluded that each
issue is frivolous, and our independent review leads us to the same conclusion.
The third issue is dispositive; if Peralte’s appellate waiver is valid, then he has
waived his right to appeal on “any” grounds, including the sentencing and sufficiency of
the evidence issues. The seminal case governing appellate waivers in this Court is United
States v. Khattak, 273 F.3d 557 (3d Cir. 2001). Under Khattak, appellate waivers are
valid “if entered into knowingly and voluntarily, unless they work a miscarriage of
justice.” Id. at 558. Even “the most basic rights of criminal defendants are . . . subject to
waiver.” Peretz v. United States, 501 U.S. 923, 936 (1991); Khattak, 273 F.3d at 561.
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Pursuant to his plea agreement, Peralte comprehensively waived his rights, pursuant to 18
U.S.C. § 3742 and 28 U.S.C. § 2255, to a direct or collateral appeal.
To determine whether the waiver was knowing and voluntary, we “look to the
colloquy between the sentencing judge and [the defendant,]” United States v. Price, 558
F.3d 270, 284 (3d Cir. 2009) (quoting United States v. Gwinnett, 483 F.3d 200, 204 (3d
Cir. 2007)), and examine whether the sentencing judge complied with the requirements of
Rule 11 of the Federal Rules of Criminal Procedure. See United States v. Jackson, 523
F.3d 234, 243 (3d Cir. 2008). Rule 11 provides that:
“Before the court accepts a plea of guilty or nolo contendere, the defendant
may be placed under oath, and the court must address the defendant
personally in open court. During this address, the court must inform the
defendant of, and determine that the defendant understands . . . the terms of
any plea-agreement provision waiving the right to appeal or to collaterally
attack the sentence.”
Fed. R. Crim. Pro. 11(b)(1). Additionally, the court “must address the defendant
personally in open court and determine that the plea is voluntary and did not result from
force, threats, or promises (other than promises in the plea agreement).” Id. at 11(b)(2).
In the case at bar, the sentencing judge complied with the requirements of Rule 11.
Through the aid of an interpreter, the District Court found that Peralte understood the
effects of the plea agreement and appellate waiver and voluntarily pled guilty. Based on
the record, we find that the District Court’s colloquy was thorough and proper, and agree
with the District Court’s finding that Peralte’s appellate waiver was knowing and
voluntary. See Jackson, 523 F.3d at 243.
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Furthermore, nothing in the record indicates that enforcing the appellate waiver in
this case would constitute a “miscarriage of justice.” Khattak, 273 F.3d at 558. Peralte’s
situation simply does not present the type of “unusual circumstance” which could amount
to a miscarriage of justice, such as “if the sentence was . . . imposed in excess of the
maximum penalty provided by law or . . . based on a constitutionally impermissible
factor such as race.” Khattak, 273 F.3d at 562 (internal quotation marks and citation
omitted).
IV.
For the reasons set forth above, we will affirm the judgment of the District Court
and grant defense counsel’s motion to withdraw. Additionally, pursuant to Third Circuit
Local Appellate Rule 109.2(b), we certify that the present appeal “lack[s] legal merit for
purposes of counsel filing a petition for writ of certiorari in the Supreme Court.”
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