                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-31-2009

USA v. Norberto Herrera
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4632




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                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 07-4632
                                   _____________

                          UNITED STATES OF AMERICA

                                          v.

                              NORBERTO HERRERA,

                                                        Appellant
                                   _____________

                   On Appeal from the United States District Court
                          for the District of New Jersey
                           (D.N.J. Crim. No. 07-00478)

                           Magistrate Judge: Patty Schwartz
                     District Judge: Honorable Faith S. Hochberg
                                    _____________

                    Submitted Under Third Circuit L.A.R. 34.1(a)
                                on March 10, 2009

          Before: FUENTES, CHAGARES and ALDISERT, Circuit Judges.
                        (Opinion Filed: March 31, 2009 )

                                   _____________

                             OPINION OF THE COURT




ALDISERT, Circuit Judge.

      Appellant Norberto Herrera’s attorney has filed a motion to withdraw as appellate
counsel in this case, and has filed a brief in support thereof under Anders v. California,

386 U.S. 738 (1967). Counsel contends that there are no nonfrivolous issues that can be

raised on appeal by Herrera, who, in conjunction with a plea agreement reached with the

government, pled guilty to conspiracy to distribute methamphetamine, contrary to 21

U.S.C. §§ 841(a) & (b)(1)(B), in violation of 21 U.S.C. § 846. We agree. Accordingly, we

will affirm the decision of the District Court of the District of New Jersey and we will

grant counsel’s Anders motion.

                                             I.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

       We exercise plenary review to determine whether there are any nonfrivolous issues

on appeal. Penson v. Ohio, 488 U.S. 75, 80 (1988). The determination of frivolousness is

informed by the standard of review for each potential claim raised. See, e.g., United

States v. Schuh, 289 F.3d 968, 974-976 (7th Cir. 2002).

       Because we write only for the parties, who are familiar with the facts, procedural

history and contentions presented, we will not recite them except as necessary to the

discussion.

                                             II.

       Anders provides that “if counsel finds his case to be wholly frivolous, after a

conscientious examination of it, he should so advise the court and request permission to



                                              2
withdraw.” 386 U.S. at 744. “That request must, however, be accompanied by a brief

referring to anything in the record that might arguably support the appeal.” Id. This Court

implements Anders via our Local Appellate Rule 109.2(a), which sets forth the following

procedure:

       Where, upon review of the district court record, counsel is persuaded that
       the appeal presents no issue of even arguable merit, counsel may file a
       motion to withdraw and supporting brief pursuant to Anders v. California,
       386 U.S. 738 (1967), which must be served upon the appellant and the
       United States. The United States must file a brief in response. Appellant
       may also file a brief in response pro se. . . . If the panel agrees that the
       appeal is without merit, it will grant counsel’s Anders motion, and dispose
       of the appeal without appointing new counsel.
3d Cir. L.A.R. 109.2(a).

       This Court’s inquiry is twofold when an Anders motion is brought. First, we must

determine whether counsel has adequately fulfilled the obligations imposed by L.A.R.

109.2(a). United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Counsel’s Anders

brief must (1) “satisfy the court that counsel has thoroughly examined the record in search

of appealable issues,” id. at 300; (2) identify any “issue[s] arguably supporting the appeal

even though the appeal was wholly frivolous,” Smith v. Robbins, 528 U.S. 259, 285

(2000); and (3) “explain why the issues are frivolous,” United States v. Marvin, 211 F.3d

778, 780 (3d Cir. 2000). Second, we must independently review the record to confirm that

the appeal does not present any nonfrivolous issues. Youla, 241 F.3d at 300. In so doing,

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.


                                                3
       Pursuant to Anders and our local rule, counsel submitted a brief arguing that there

are no nonfrivolous arguments on appeal and filed a motion seeking to withdraw as

counsel; the government responded. A copy of defense counsel’s brief was furnished to

Herrera, who was given time to raise any non-frivolous arguments in a pro se brief in

response. See Anders, 386 U.S. at 744; 3d Cir. L.A.R. 109.2(a) (2002). Herrera has failed

to file such a brief. We have examined the briefs of counsel and conclude that none of

the issues that could be raised are nonfrivolous, and our own review of the record reveals

no other nonfrivolous issues.

       This Court’s first inquiry is “whether counsel adequately fulfilled [Rule 109.2’s]

requirements.” Youla, 241 F.3d at 300. Here, defense counsel has filed a motion to

withdraw and an Anders brief, stating that counsel has reviewed the record, identified

three potential issues, and determined that these issues are frivolous. Defense Counsel’s

Anders Brief (“DB”) 9-19. Thus, defense counsel appears to have fulfilled Rule 109.2’s

requirements adequately.

       “Where the Anders brief initially appears adequate on its face,” this Court then

inquires “whether an independent review of the record presents any nonfrivolous issues.”

Youla, 241 F.3d at 300-301. In this second inquiry, this Court confines its scrutiny to

those issues and “those portions of the record identified by an adequate Anders brief”

and, if applicable, to “those issues raised in Appellant’s pro se brief.” Id. at 301 (citing




                                               4
United States v. Wagner, 103 F.3d 551, 552-553 (7th Cir. 1996)).1 If this inquiry shows

that the identified issues are frivolous, the appeal is “wholly frivolous.” Youla, 241 F.3d

at 299; see id. at 301 (“An appeal on a matter of law is frivolous where ‘[none] of the

legal points [are] arguable on their merits.’”) (citation omitted); see also McCoy v. Court

of Appeals of Wisconsin, 486 U.S. 429, 438 n.10 (1988) (an appeal is frivolous if “the

appeal lacks any basis in law or fact”).

                                              III.

       We agree with defense counsel and the United States that the issues identified by

defense counsel lack any basis in law or fact. First, any challenge to Herrera’s guilty plea

hearing would be frivolous. The Magistrate Judge engaged in an extensive colloquy that

covered all of the necessary requirements of Rule 11 of the Federal Rules of Criminal

Procedure, and determined that there was a factual basis for Herrera’s guilty plea, which

was knowingly and voluntarily entered. Appendix (“App.”) 36-64. By order, the District

Court, after reviewing the guilty plea transcript and the Magistrate Judge’s report and

recommendation, accepted Herrera’s plea. App. 33. Accordingly, we are satisfied that the




       1
        In Wagner, the Seventh Circuit concluded that it would be inappropriate for a
Court of Appeals “to comb the record . . . searching for possible non-frivolous issues that
both the lawyer and his client may have overlooked”; instead, the court will “confine our
scrutiny of the record to the portions of it that relate to the issues discussed in the brief,”
and “the court’s duty is merely to determine whether counsel is correct in believing those
grounds frivolous.” Wagner, 103 F.3d at 552-553. This Court has adopted the Seventh
Circuit’s approach. Youla, 241 F.3d at 301; see Marvin, 211 F.3d at 780 n.3 (stating that
“this approach appears sound”).

                                               5
record in this case supports the determination of the District Court that Lee made a

knowing, intelligent and voluntary guilty plea supported by a factual basis, as required by

Rule 11 of the Federal Rules of Civil Procedure and the constitutional requirements of

Boykin v. Alabama, 395 U.S. 238 (1969), and we conclude that any challenge to the

guilty plea would be frivolous. See United States v. Schweitzer, 454 F.3d 197, 202-203

(3d Cir. 2006) (finding challenge to guilty plea “wholly baseless” where district court had

engaged in comprehensive admonitions and warnings pursuant to Rule 11, identified

factual basis for the plea, and received multiple verbal assurances of defendant’s

understanding of plea’s ramifications); see also United States v. Lessner, 498 F.3d 185,

192-198 (3d Cir. 2007).

         Second, any challenge to Herrera’s sentencing hearing would be frivolous. At

sentencing, the District Court heard from Herrera and his counsel at length, engaged in

the three-step sentencing analysis that has been announced by this Court (see United

States v. Gunter, 527 F.3d 282, 285 (3d Cir. 2008)), and, after considering the arguments

of both parties and the 18 U.S.C. § 3553(a) factors, imposed a sentence more than twenty

months below the advisory Sentencing Guidelines range. App. 9, 14-29. Such

consideration meets this Court’s requirements following United States v. Booker, 543

U.S. 220 (2005). See, e.g., United States v. Charles, 467 F.3d 828, 831-834 (3d Cir.

2006).

         Finally, any appeal of the sentence would be additionally frivolous because



                                              6
Herrera agreed that a sentence within offense level 23 was reasonable, and further agreed

not to appeal such a sentence. App. 71-72. The sentence imposed here fell a full ten

months below that range, and therefore an appeal on this basis is waived and any

challenge would be frivolous. See United States v. Gwinnett, 483 F.3d 200, 205-206 (3d

Cir. 2007); United States v. Khattak, 273 F.3d 557, 563 (3d Cir, 2001) (“Waivers of

appeal, if entered knowingly and voluntarily, are valid unless they work a miscarriage of

justice.”).

                                           *****

         We have considered all of the arguments advanced by the parties and conclude that

no further discussion is necessary. We are satisfied that counsel has comprehensively

examined the record and fulfilled the requirements of Anders and L.A.R. 109.2(a). Our

independent review of the record likewise does not reveal any nonfrivolous issues to be

asserted on appeal. The judgment of the District Court will be affirmed and we will grant

counsel’s motion to withdraw. Because the issues presented in the appeal lack legal merit,

they do not require the filing of a petition for writ of certiorari with the U.S. Supreme

Court.




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