United States v. Paz , 204 F. App'x 108 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
11-7-2006
USA v. Paz
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3854
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Paz" (2006). 2006 Decisions. Paper 235.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/235
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 2006 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NOT PRECEDENTIAL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. 05-3854
____________
UNITED STATES OF AMERICA
v.
NICHOLAS PAZ,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 02-cr-00441)
District Judge: Honorable Cynthia M. Rufe
____________
Submitted Under Third Circuit LAR 34.1(a)
September 15, 2006
Before: FUENTES, FISHER and McKAY,* Circuit Judges.
(Filed: November 7, 2006)
____________
OPINION OF THE COURT
____________
*
The Honorable Monroe G. McKay, United States Circuit Judge for the Tenth
Circuit, sitting by designation.
McKAY, Circuit Judge.
This is a direct criminal appeal. As we write for the parties, only a brief summary
of pertinent facts is necessary.
Appellant was indicted for, and pled guilty to, armed bank robbery. Following the
indictment but prior to the guilty plea, a second indictment was issued charging Appellant
with conspiracy to tamper with a federal witness and obstruction of justice. That case
was tried to a jury and resulted in conviction.1 The district court subsequently sentenced
Appellant for the armed robbery conviction. It imposed a two-point enhancement for
obstruction of justice, based in part on Appellant’s witness-tampering conviction, and
denied an acceptance-of-responsibility reduction despite Appellant’s assistance following
his arrest in the investigation of the bank robbery and of other criminal activity. We
vacated this sentence and remanded for resentencing following the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005).
On resentencing, the district court applied the United States Sentencing Guidelines
to determine the sentencing range. Then, based on 18 U.S.C. § 3553(a) as well as on
Appellant’s informal request for downward deduction, the district court granted a two-
point deduction for acceptance of responsibility and a one-point deduction for timely
notification of plea. The district court chose not to depart upward despite new
1
This conviction was affirmed on appeal.
2
information that Appellant was convicted in state court of homicide.2 The resulting
sentence was ninety months lower than the original sentence. Appellant filed a timely
appeal.
Appellant’s counsel has filed a motion for leave to withdraw as counsel and has
submitted a brief in support of this motion pursuant to Anders v. California, 386 U.S. 738
(1967). Appellant has filed a pro se brief in response. In analyzing an Anders brief, we
inquire “(1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether
an independent review of the record presents any nonfrivolous issues.” United States v.
Youla, 241 F.3d 296, 300 (3d Cir. 2001). “The duties of counsel when preparing an
Anders brief are (1) to satisfy the court that counsel has thoroughly examined the record
in search of appealable issues, and (2) to explain why the issues are frivolous.” Id. We
can grant counsel’s motion to withdraw and dismiss the appeal on the merits where our
review confirms that the appeal does not present any nonfrivolous issues. Id. at 299. 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. We do not,
however, “comb the record . . . for possible nonfrivolous issues that both the lawyer and
his client may have overlooked,” as “[our] 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).
2
Appellant was sentenced to life in prison on this conviction. This sentence is
presently on appeal in the Pennsylvania Superior Court.
3
After an independent review of the record, including the presentencing report, the
resentencing transcript, and the parties’ briefs, we have determined that counsel has
satisfied his Anders burden and that no nonfrivolous issues exist from which to appeal.
The only potentially appealable issue correctly identified by counsel is Appellant’s
request that the district court “more faithfully” adhere to the requirements of § 3553(a). It
is clear that the district court faithfully adhered to and considered the § 3553(a) factors
and reasonably applied them to the circumstances of Appellant’s case. See United States
v. Cooper, 437 F.3d 324, 330-32 (3d Cir. 2006) (setting forth the test for review of a
sentence for reasonableness). The fact that the district court chose not to further reduce
Appellant’s sentence was logically explained and well supported, especially in light of
Appellant’s lengthy criminal history and recent homicide conviction.3
Appellant argues pro se that his indictment and conviction are a nullity as a matter
of law due to Presentment and Enactment Clause procedural improprieties committed by
the 80th Session of Congress. This argument is without merit.
Because we have determined that this appeal does not present any nonfrivolous
issues, Appellant’s sentence is hereby affirmed, and counsel’s request for leave to
withdraw is granted. See 3d Cir. LAR 109.2(a) (citing Anders, 386 U.S. 738). We also
find that it is unnecessary to appoint counsel to file a petition for rehearing in this Court
3
The district court properly observed that Appellant did not make a formal motion
to depart downward. We note that this court, like other circuit courts, does not review,
after Booker, a district court’s decision to deny departure. See Cooper, 437 F.3d at 333
(collecting cases).
4
or a petition for writ of certiorari in the Supreme Court on the defendant’s behalf. See id.
109.2(b).
5