                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-16-2003

USA v. Bennett
Precedential or Non-Precedential: Non-Precedential

Docket 01-1625




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Recommended Citation
"USA v. Bennett" (2003). 2003 Decisions. Paper 654.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/654


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                                                   NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT




                   No: 01-1625
                 _____________

        UNITED STATES OF AMERICA

                          v.

                WALI BENNETT,
                      Appellant




    Appeal from the United States District Court
      for the Eastern District of Pennsylvania
     (D.C. Criminal Action No. 00-cr-00409)
     District Judge: Honorable Stewart Dalzell


    Submitted Under Third Circuit LAR 34.1(a)
               on March 3, 2003

Before: ROTH, BARRYand FUENTES, Circuit Judges

              (Filed April 16, 2003)
                                             OPINION




ROTH, Circuit Judge:

        The defendant below, Wali Bennett, was indicted for possession with the intent to

distribute some 16 kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1). The

cocaine had been seized from Bennett by Drug Enforcement Agents (DEA) after Bennett

traveled to Philadelphia from New York by train. Bennett moved to suppress the seized

cocaine; the District Court judge denied the motion. Bennett pled guilty to the single count

in the indictment and was sentenced to ten years imprisonment.

        Bennett appealed, and his counsel filed an appellate brief pursuant to Anders v.

California, 386 U.S. 738 (1967). His counsel was unable to identify any non-frivolous

issues to support Bennett’s appeal and moved to withdraw. As required by Anders, counsel

pointed out the issues and portions of the record that might arguably support an appeal.

Bennett was given notice of his attorney's desire to withdraw, as required by Anders, so that

Bennett could raise any issues for appeal in a pro se brief. Bennett failed to do so. We

have reviewed the record and agree that there are no non-frivolous issues to appeal.

        Bennett’s counsel addressed whether Bennett could base an appeal on the District

Court’s denial of Bennett’s motion to suppress physical evidence, and counsel determined

that this claim would be frivolous. We agree. Bennett did not preserve his right to



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challenge the pretrial suppression ruling and has waived the issue. See, e.g., United States

v. Bentz, 21 F.3d 37, 38 (3d Cir. 1994) (only a defendant entering into a conditional plea

may appeal preserved issues). Additionally, we agree with the District Court that, in view

of the totality of the circumstances, Bennett was not subject to a Fourth Amendment

seizure. See, e.g., Florida v. Bostick. 501 U.S. 429 (1991). Further, the District Court

found that the agents had reasonable suspicion to seize Bennett for the purposes of a Terry

investigative stop based on their observations of Bennett’s behavior. See generally Terry v.

Ohio, 392 U.S. 1 (1968). Finally, the record demonstrates that Bennett voluntarily

consented to the agents’ search of his bags.

        For the foregoing reasons, we will affirm the judgment of the District Court and

grant counsel's request to withdraw.




                                                    3
TO THE CLERK:

     Please file the foregoing Opinion.




                                           By the Court,




                                           /s/ Jane R. Roth
                                          Circuit Judge




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