United States v. Sanchez , 53 F. App'x 208 ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
11-19-2002
USA v. Sanchez
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-4040
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-4040
UNITED STATES OF AMERICA
v.
AGUEDO DEJESUS SANCHEZ,
Appellant
Appeal from the District Court
of the Virgin Islands
(D.C. Criminal No. 00-cr-00645-2)
District Judge: Honorable Thomas K. Moore
Submitted Under Third Circuit LAR 34.1(a)
on November 15, 2002
Before: SCIRICA, ALITO and RENDELL, Circuit Judges
(Filed November 19, 2002 )
OPINION OF THE COURT
RENDELL, Circuit Judge.
This appeal arises out of an indictment against Sanchez and two co-defendants
charging a drug conspiracy. All three co-defendants pled guilty. Sanchez’s counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), identifying but finding
wholly meritless possible challenges to Sanchez’s guilty plea and the District Court’s
refusal to downward depart on Sanchez’s sentence for minor role, pursuant to U.S.S.G.
§3B1.2 (2002), and the “safety valve,” 18 U.S.C. §2553(f) (2002). Sanchez has filed an
informal brief appealing his sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000),
claiming that the District Court imposed a penalty beyond the prescribed statutory
maximum and arguing that he was given ineffective assistance of counsel because his
counsel did not raise the Apprendi issue at sentencing or on appeal. Because Sanchez’s
counsel faithfully met the requirements of Anders, and we find upon independent review
that this appeal lacks merit, we will grant counsel’s motion to withdraw and dismiss the
appeal.
In September 2000, Special Agent Hilary Hodge of the United States Customs
Service observed a boat departing St. Thomas, Virgin Islands with two people on board, later
identified as Sanchez and Miguel Angel Montero-Baez. Sanchez appeared to be directing
Montero-Baez where to go and also aided Montero-Baez in restarting the vessel after the
engine stalled. Law enforcement agents aboard a U.S. Customs aircraft later saw Sanchez,
Montero-Baez, and Julio Moncado-Polomo in the boat throwing bales of cocaine
overboard. At the time of his arrest, Sanchez had several telephone numbers in his
possession that matched those in Moncado-Polomo’s possession. Sanchez was indicted
for conspiracy to possess with intent to distribute and possession with intent to distribute
more than five kilograms of cocaine. He pled guilty to the conspiracy charge, and was
sentenced to 210 months imprisonment, a term of five years supervised release, and
ordered to pay a $100 special assessment.
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The District Court of the Virgin Islands had jurisdiction pursuant to 18 U.S.C. §3231(2002). We exercise jurisdiction over the District Court’s final order pursuant to 28
U.S.C. §1291 (2002). We review the District Court’s findings of fact for clear error,
United States v. Isaza-Zapata, 148 F.3d 236, 238 (3d Cir. 1998), and exercise plenary
review over its rulings on matters of law. United States v. Queensborough, 227 F.3d 149,
156 (3d Cir. 2000). Finally, we review Sanchez’s counsel’s Anders brief for a
conscientious examination of possible appealable issues, and conduct an independent
review to determine whether there are any issues of merit. Anders, 386 U.S. at 744.
We conclude that Sanchez’s counsel did conscientiously examine the record,
including in her brief four conceivably appealable issues. All are without merit. First, she
argues that Sanchez might move to withdraw his guilty plea under Federal Rule of Criminal
Procedure 32(e), which allows for withdrawal for “any fair and just reason.” We look to
three factors in evaluating such a motion to withdraw: “(1) whether the defendant asserts his
innocence; (2) whether the government would be prejudiced by his withdrawal; and (3) the
strength of the defendant’s reason to withdraw the plea.” United States v. Huff, 873 F.2d
709, 712 (3d Cir. 1989). Sanchez has never asserted his innocence, therefore this
argument is wholly meritless.
Second, Sanchez’s counsel argues that Sanchez might challenge his guilty plea on
the grounds that the government breached the agreement. The government has an obligation
to strictly adhere to the terms of a plea bargain. Queensborough, 227 F.3d at 156. Here,
the government agreed to recommend a reduction of two levels for acceptance of
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responsibility and an additional reduction of one level for “extraordinary acceptance of
responsibility.” See U.S.S.G. §§ 3E1.1(a) and (b). The government did so. The government
retained the right to allocute at sentencing, and specifically refused Sanchez’s request that
it provide recommendations regarding downward departures for minor role or under the
safety valve. The government’s opposition to these latter downward departure requests
therefore did not breach the plea agreement. Queensborough, 227 F.3d at 158.
Third, Sanchez’s counsel poses a possible challenge to the District Court’s failure to
depart downward for Sanchez’s minimal or minor role in the offense. U.S.S.G. §3B1.2. In
determining whether a defendant was a minimal or minor participant in the crime, a district
court must consider the defendant’s relative culpability as compared with the other
participants. Isaza-Zapata, 148 F.3d at 242. The District Court correctly identified this
legal requirement, and did not clearly err in finding that Sanchez’s role was “equal to that of
the other individual he went out with,” namely, Montero-Baez. The District Court relied on
the testimony of Special Agent Hodge, who testified that Sanchez directed the vessel upon
pursuit by law enforcement agents, assisted in restarting the vessel after it stalled, and had
numerous telephone numbers in his possession that matched those in the possession of
Montero-Baez. In light of this uncontroverted testimony, the District Court’s finding that
Sanchez was not a minor participant is not clearly erroneous.
Finally, Sanchez’s counsel identifies a possible challenge to the District Court’s
failure to depart downward under the safety valve provision, 18 U.S.C. §2553(f), which
enables a sentencing judge to depart downward if he or she finds that the defendant meets
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five criteria. The District Court found that Sanchez did not meet prong (5), requiring a
defendant to truthfully provide to the government all information and evidence the
defendant has concerning the offense or offenses that were part of the same course of
conduct or of a common scheme or plan. §2553(f)(5). The Court heard the testimony of
Special Agent Hodge, who stated that Sanchez had not been truthful because he lied about
his arrival in St. Thomas, refused to identify the phone numbers found in his pockets, and
incorrectly identified a co-conspirator. The Court thus relied on specific information
regarding Sanchez’s untruthfulness. In light of Agent Hodge’s uncontroverted testimony,
the District Court’s finding that Sanchez had not been fully forthcoming with the
government is not clearly erroneous.
By conscientiously examining the record and identifying conceivably appealable
issues, Sanchez’s counsel met the requirements under Anders. We will therefore grant her
motion to withdraw.
In an informal brief, Sanchez himself raises two issues: 1) that his sentence was
imposed in violation of Apprendi, and 2) that his counsel was ineffective because she failed
to raise the Apprendi issue. Neither of these claims has merit.
Under Apprendi, a sentencing judge may not determine facts that increase the
penalty for a crime beyond the prescribed statutory maximum. 530 U.S. at 476. However,
nothing in Apprendi restricts a judge’s ability to exercise his or her discretion in imposing
a sentence within the range prescribed by statute. Id. at 481. Sanchez argues that the
sentencing judge determined the amount of cocaine attributable to him and then used this
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fact to arrive at a sentence. This is true. However, in doing so, the judge arrived at a
sentence well within the prescribed statutory range.1 Sanchez’s Apprendi challenge
therefore has no merit.
Because his Apprendi argument is meritless, Sanchez’s claim that his counsel
provided ineffective assistance by failing to raise an Apprendi issue must also fail.
Sanchez’s counsel’s failure to raise Apprendi is apparent from the record, therefore we may
review Sanchez’s ineffective assistance claim on direct appeal. United States v. Headley,
923 F.2d 1079, 1083 (3d Cir. 1991). To prove ineffectiveness of counsel, Sanchez must
establish his counsel’s performance was deficient, and that this deficiency prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). As discussed above,
counsel’s failure to raise Apprendi was completely reasonable and did not in any way affect
the Court’s sentencing decision. We therefore find that Sanchez’s ineffective assistance
claim lacks all merit.
For the foregoing reasons, we will grant Sanchez’s counsel’s motion to withdraw and
1
Sanchez’s sentence of 210 months is well within the guideline range for conspiracy
to possess with intent to distribute more than five kilograms of cocaine, which carries a
statutory maximum of life imprisonment. 21 U.S.C. §841(b)(1)(A) (2002). Sanchez
makes the unsupported assertion that he actually pled guilty to conspiracy to possess with
intent to distribute “50 grams or more” of cocaine, and that the District Court violated
Apprendi by finding that he had conspired to possess “almost 500 kilograms” of cocaine.
However, the indictment clearly states that he was charged with conspiracy to possess with
intent to distribute “more than five kilograms of cocaine.” The drug amount, type, and
statutory maximum of life imprisonment were all confirmed several times during the plea
hearing. Furthermore, even assuming arguendo that Sanchez had pled guilty to possession
of 50 grams or more of cocaine, his 210 month sentence is still below the statutory
maximum of 20 years imprisonment. §841(b)(1)(C).
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dismiss the appeal.
____________________________
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TO THE CLERK OF COURT:
Please file the foregoing opinion.
/s/Marjorie O. Rendell
Circuit Judge
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