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


5-14-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-2038




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Recommended Citation
"USA v. Baez" (2003). 2003 Decisions. Paper 557.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/557


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                                                               NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                                  No. 02-2038




                       UNITED STATES OF AMERICA

                                       v.

                               CARLOS BAEZ,
                                        Appellant




                 On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                      D.C. Criminal No. 01-cr-00529-01
                         (Honorable Harvey Bartle, III)




                Submitted Pursuant to Third Circuit LAR 34.1(a)
                                April 22, 2003

      Before: SCIRICA, Chief Judge*, AMBRO and W EIS, Circuit Judges

                              (Filed May 14, 2003)




                          OPINION OF THE COURT




*Judge Scirica began his term as Chief Judge on May 4, 2003.
SCIRICA, Chief Judge.

         Carlos Baez appeals his conviction and sentence after pleading guilty to conspiracy

and distribution of more than 1,000 grams of PCP and 500 grams of cocaine within 1,000

feet of a school. 1 His counsel filed an Anders brief2 and a motion to withdraw. Although

granted three time extensions to file a pro se brief, Baez failed to file his own brief.

                                              I.

         Carlos Baez participated in the organized sale of cocaine and PCP on the 600

block of West Clearfield Street in Philadelphia. Supervisors like Baez distributed cocaine

and PCP to the sellers, and collected the proceeds from them.

         In police surveillance from January to March 2000, Baez was observed supervising

sellers and collecting money from them, and retrieving cocaine from the storage

locations. Baez himself made several sales to a cooperating witness, including 13 small

   1
    The substantive offenses of conviction were:
        – Count 7 – distribution of phencyclidine (PCP) within 1,000 feet of a school, in
violation of 21 U.S.C. § 860(a);
        – Counts 9, 15 and 17 – distribution of cocaine within 1,000 feet of a school, in
violation of 21 U.S.C. § 860(a);
        – Count 19 – possession with intent to distribute more than 500 grams of PP within
1,000 feet of a school, in violation of 21 U.S.C. § 860(a); and
        – Count 21 – possession with intent to distribute cocaine within 1,000 feet of a
school, in violation of 21 U.S.C. § 860(a).
        The parties agreed that the offenses involved 3,896 grams of PCP and 2,350 grams
of cocaine, and that the offenses took place within 1,000 feet of a public elementary
school. The defendant further agreed that he acted as a manager and was subject to the
two-level increase stated in Section 3B1.1(c). The government agreed that Rios was
entitled to a two-level decrease for acceptance of responsibility, under § 3E1.1.
   2
       Anders v. California, 386 U.S. 738 (1967).

                                               2
jars of PCP sold on February 25, 1999, 2.565 grams of cocaine sold on February 29,

1999, 6.113 grams of cocaine sold on March 15, 2000, and 6.69 grams of cocaine sold on

March 16, 2000.

       On March 16, 2000, police arrested Baez and several co-conspirators on the 600

block of West Clearfield Street. They also executed search warrants for residences at 614

West Clearfield Street and 3108 North Sixth Street, from which Baez had been observed

retrieving drugs. The police found significant quantities of PCP and cocaine. At the time

of his arrest, Baez possessed keys to 614 West Clearfield Street.

                                            II.

       The government calculated, based on various seizures and witness accounts, that

the conspiracy sold at least 38 grams of PCP and 35 grams of cocaine each day during the

course of police surveillance, from January 12 through March 16, 2000. The pre-

sentence report, after adding the quantities seized on March 16, 2000, determined that the

total quantities for which Baez was responsible were 2,592 grams of PCP and 2,472

grams of cocaine. The report noted that the government fixed a higher quantity of PCP

based on other seizures, but stated that the offense level would be unchanged even with

the additional PCP included.

       Factoring in a three-level increase due to Baez’s managerial role and a three-level

reduction for acceptance of responsibility, the pre-sentence report recommended an

offense level of 36. With a criminal history category IV, based on several prior offenses,



                                             3
the report fixed a sentence range of 262-327 months. Other than the heightened

leadership role enhancement, Baez did not object to any of these calculations.

                                            III.

       At sentencing, the District Court adopted the lower guideline range recommended

by the plea agreement, in which the parties stipulated to a two-level rather than three-level

increase for leadership role. This lowered the guideline range to 235-293 months.

Defense counsel advocated a sentence at the bottom of that range. The court agreed and

imposed a sentence of 235 months imprisonment.

       As noted, defense counsel filed an Anders brief. We have independently reviewed

the record including the Rule 11 plea colloquy and the legality of the sentence imposed.

We hold the plea was validly entered and the sentence was legal. We see no other

possible errors.

       For these reasons, we will affirm the judgment of conviction and sentence.


TO THE CLERK:

              Please file the foregoing opinion.




                                          /s/ Anthony J. Scirica
                                          Chief Judge
