United States v. Santiago , 216 F. App'x 142 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-8-2007
USA v. Santiago
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5419
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"USA v. Santiago" (2007). 2007 Decisions. Paper 1646.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 05-5419
____________
UNITED STATES OF AMERICA,
v.
ANGEL SANTIAGO,
Appellant.
____________________________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 91-00301-26)
District Judge: Honorable Lawrence F. Stengel
____________________________________
Submitted Under Third Circuit LAR 34.1(a)
January 30, 2007
____________________________________
Before: BARRY and ROTH, Circuit Judges, and
DEBEVOISE * , Senior District Court Judge
( Filed: February 8, 2007)
_________________
OPINION
__________________
*
Honorable Dickinson R. Debevoise, Senior District Court Judge for the District of New
Jersey, sitting by designation.
Debevoise, Senior District Court Judge
Appellant, Angel Santiago, appeals from a judgment revoking his supervised release and
sentencing him to 12 months and one day of imprisonment, followed by 3 years of supervised
release. Santiago’s counsel on appeal, Robert Epstein, Assistant Federal Defender, filed an
Anders motion to withdraw as counsel, asserting that all potential grounds for appeal are
frivolous. For the reasons set forth below we grant the motion and affirm the District Court’s
revocation of supervised release.
I.
Under Anders v. California, 386 U.S. 738 (1967), if counsel “finds [a] case to be wholly
frivolous, after a conscientious examination” of the potential grounds for appeal, s/he should
“advise the court and request permission to withdraw.” Id. at 744. This request must be
accompanied by “a brief referring to anything in the record that might arguably support the
appeal,” id., “explain[ing] to the court why the issues are frivolous,” United States v. Marvin,
211 F.3d 778, 781 (3d Cir. 2000), and demonstrating that s/he has “thoroughly scoured the record
in search of appealable issues,” id. at 780. A copy of counsel’s brief must be furnished to the
appellant, who must be given time to raise non-frivolous arguments in a pro se brief. Anders,
386 U.S. at 744; Third Circuit LAR 109.2(a)(2000).
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.” United States v.
Youla, 241 F.3d 296, 301 (3d Cir. 2001). We do not “comb the record . . . for possible
nonfrivolous issues that both the lawyer and his client may have overlooked,” as “[our]
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duty is merely to determine whether counsel is correct in believing those grounds [raised
are] frivolous.” United States v. Wagner, 103 F.3d 551, 552-53 (7th Cir. 1996). We
grant counsel’s Anders motion to withdraw if we believe “that the attorney has provided
the client with a diligent and thorough search of the record for any arguable claim,”
McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988), and if we conclude
“that the appeal lacks any basis in law or fact,” id. at 438 n.10.
II.
As we write for the parties, only a brief summary of pertinent facts and procedural
history is necessary. Santiago pled guilty to conspiracy to distribute heroin in violation of 21
U.S.C. § 846 in the Eastern District of Pennsylvania. On September 23, 1993, the District Court
sentenced him to 156 months incarceration, to run concurrently with a previously imposed state
sentence, ten years of supervised release, a fine of $2,500, and a $50 special assessment. He was
released from custody and began supervised release on January 27, 2005.
On September 21, 2005, Santiago’s probation officer filed a violation petition alleging
that Santiago had violated his conditions of supervised release in four respects: i) failing to report
to his probation officer; ii) failing to provide notification of change of employment; iii) using
heroin and cocaine; and iv) failing to participate in outpatient drug counseling at the direction of
the probation office.
On December 5, 2005, a hearing was held on the violations. The charging document set
forth full details of the four violations, and Santiago’s attorney stipulated to them. The District
Court revoked Santiago’s supervised release and sentenced him to 12 months and one day of
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imprisonment, followed by three years of supervised release, the first three months of which are
to be served in a halfway house.
Santiago filed a timely notice of appeal.
III.
18 U.S.C. § 3583(e) empowers federal district courts to revoke a term of supervised
release if the court finds by a preponderance of the evidence that the defendant violated a
condition of the supervised release. Defense counsel brings to the Court’s attention one case
which held that initiation of a violation of supervised release proceeding by means of a probation
officer’s petition to a judge, as happened here, is invalid. United States v. Jones, 957 F. Supp.
1088, 1090-91 (E.D. Ark. 1997). That case, as the defense demonstrates, is obviously wrong and
has been universally rejected.
The violation proceeding in the present case was properly instituted and properly
conducted in full accordance with Fed. R. Crim. P. 32. Santiago did not contest the charges; in
fact, his attorney stipulated to them.
With respect to the sentence, Santiago had the opportunity to address the court and did so.
The sentence of 12 months and one day was well within the limits set forth in the controlling
statutes and pertinent sentencing guideline provisions.
Because Santiago’s offense of conviction was a Class A felony (21 U.S.C. § 846), the
term of imprisonment after revocation of supervised release was limited to not more than 5 years.
18 U.S.C. § 3583(e)(3). The sentence suggested in the Sentencing Guidelines Manual, which is
advisory only, is 8-14 months.
Santiago did not submit an Informal Brief in response to the Anders brief. No flaw
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appears in the revocation procedures, either procedurally or substantively, and thus Santiago’s
appeal is totally lacking in merit.
For the reasons set forth above, we affirm the District Court’s revocation of Santiago’s
supervised release and the sentence the Court imposed. We grant counsel’s motion to withdraw.
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