United States v. Herman Mercado , 327 F. App'x 380 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-10-2009
USA v. Herman Mercado
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1410
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"USA v. Herman Mercado" (2009). 2009 Decisions. Paper 1206.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1206
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1410
UNITED STATES OF AMERICA
v.
HERMAN MERCADO,
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 06-cr-00318-002)
District Judge: Honorable Christopher C. Conner
Submitted Under Third Circuit LAR 34.1(a)
May 19, 2009
Before: RENDELL and GARTH, Circuit Judges,
and PADOVA, District Judge*.
(Filed: June 10, 2009)
__________
OPINION OF THE COURT
__________
RENDELL, Circuit Judge.
Appellant Herman Mercado pled guilty to one count of possession with intent to
____________________
* Honorable John R. Padova, Senior Judge of the United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
distribute fifty grams or more of “crack” cocaine in violation of 21 U.S.C. § 841(a)(1).
The District Court for the Middle District of Pennsylvania entered judgment and
sentenced Mercado to 120 months’ incarceration, the statutory minimum sentence under
21 U.S.C. § 841(b)(1)(A)(iii). Mercado appeals the sentence on several grounds.
Mercado’s attorney moved to withdraw as counsel and filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967). Finding no non-frivolous arguments in
support of Mercado’s appeal, we will affirm the judgment and sentence of the District
Court and grant the motion to withdraw.1
In assessing an Anders brief, we must determine: 1) whether counsel has
thoroughly examined the record and explained why the appeal presents no issues of
arguable merit; and 2) whether our independent review of the record presents any non-
frivolous issues. United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001); Third Circuit
L.A.R. 109.2(a). If the Anders brief appears adequate on its face, we will confine our
inquiry to the portions of the record identified in an appellant’s pro se brief and counsel’s
Anders brief. Youla, 241 F.3d at 301.
Here, counsel’s Anders brief appears adequate on its face. Counsel identified three
general grounds for challenging a conviction and sentence based on a guilty plea –
jurisdiction, validity and voluntariness of the plea, and legality and reasonableness of the
1
We exercise jurisdiction under 28 U.S.C. § 1291. United States v. Tannis, 942 F.2d
196, 197 (3d Cir. 1991).
2
sentence – and thoroughly explained why there were no arguably appealable issues in
Mercado’s case. Therefore, we restrict our analysis to the issues raised by counsel and
Mercado in his pro se brief.
First, Mercado argues that the District Court was required, but failed, to examine
disparities in the penalties prescribed for crack cocaine and powder cocaine offenses
(“crack-cocaine disparity”) under the U.S. Sentencing Guidelines.2 As support for the per
se rule urged, Mercado cites Kimbrough v. United States, 552 U.S. 85 (2007). In
Kimbrough, the Supreme Court made clear that a district court may – not that it must –
consider the crack-cocaine disparity in its analysis of the 18 U.S.C. § 3553(a) factors. Id.
Accordingly, since Kimbrough was decided, two courts of appeals have expressly rejected
a categorical rule mandating consideration of the crack-cocaine disparity under §
3553(a)(6) in every case. See United States v. Roberson, 517 F.3d 990, 995 (8th Cir.
2008); United States v. Berggren, 267 Fed. Appx. 868, 870 (11th Cir. 2008). Mercado’s
insistence that the crack-cocaine disparity was “unwarranted” under § 3553(a)(6) is
particularly unpersuasive here, as the Court imposed the statutory minimum sentence, and
it was identical to that which Mercado would have received under Amendment 706 of the
Sentencing Guidelines.
2
Before the adoption of Amendment 706 in November of 2007, the Sentencing
Guidelines reflected a uniform 100 to 1 crack/powder cocaine disparity. U.S.
S ENTENCING G UIDELINES M ANUAL § 2D1.1(c) (2006) (amended Nov. 2007). Under
Amendment 706, the ratio varies, at different offense levels, between 25 to 1 and 80 to 1.
U.S.S.G. § 2D1.1(c)(2008).
3
Second, Mercado asserts that the District Court believed – erroneously – that the
Sentencing Guidelines were mandatory, and that a downward departure to reflect the
crack-cocaine disparity was prohibited. For his position, Mercado relies entirely on the
Court’s failure specifically to cite Kimbrough; Mercado concedes that there is no
affirmative evidence in the record of any misapprehension. In any event, we identify
clear evidence in the record evincing the District Court’s awareness of its discretion to
deviate from the Guidelines. The Court stated, “Although I am required to start with the
Guidelines as an initial benchmark, I will not presume that the Guidelines is [sic]
reasonable. Rather, I will make an individualized assessment based upon the facts
presented.” A. 19. The District Court also cites United States v. Gunter, where we
recognized a district court’s discretion to deviate from the Guidelines. 462 F.3d 237, 248
(3d Cir. 2006). In Gunter, we stated, “a sentencing court errs when it believes that it has
no discretion to consider the crack/powder cocaine differential incorporated in the
Guidelines,” and that “district courts may consider the crack/powder cocaine differential
in the Guidelines as a factor, but not a mandate, in the post-Booker sentencing process.”
Id. Because we conclude that the District Court properly understood that the Guidelines
were advisory rather than mandatory, we reject Mercado’s second contention.
Finally, Mercado argues that his sentence should be vacated and his base offense
level recalculated under an amendment to the Guidelines that was adopted after entry of
his guilty plea. Mercado’s argument fails at the outset, however, because he was
4
sentenced under Amendment 706 and, as indicated earlier, received the statutory
minimum sentence. A. 20.
For the foregoing reasons, we conclude that Counsel filed an adequate Anders
brief, and that our independent review of the record reveals no appealable issues of
arguable merit. Therefore, we will AFFIRM the judgment of the District Court and
GRANT Counsel’s motion to withdraw.
5