                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-15-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2920




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"USA v. Luciano" (2005). 2005 Decisions. Paper 230.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/230


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 2005 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                                                                NOT PRECEDENTIAL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. 02-2920


                           UNITED STATES OF AMERICA,

                                            v.

                                  ROSALI LUCIANO,

                                                       Appellant

                                     ____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                          (D.C. Criminal No. 01-cr-00305)
                      District Judge: Honorable J. Curtis Joyner
                                    ____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  October 21, 2005

Before: SCIRICA, Chief Judge, VAN ANTWERPEN and ALDISERT, Circuit Judges.

                               (Filed: November 15, 2005)

                              OPINION OF THE COURT


ALDISERT, Circuit Judge

      Counsel for Appellant Rosali Luciano (“Luciano”) has filed a motion to withdraw

from this case and has submitted a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that no nonfrivolous issues exist for appeal. Because Luciano has not

requested re-sentencing under United States v. Booker, --- U.S. ---, 125 S. Ct. 738, 160 L.

Ed. 2d 621 (2005), we will affirm the judgment of conviction and sentence and grant

Counsel’s motion to withdraw.

                                             I.

       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.

       On October 3, 2001, Luciano pled guilty to possession with intent to distribute

more than 100 grams of heroin in a protected zone, 18 U.S.C. § 860. On July 1, 2002, she

was sentenced pursuant to the Sentencing Guidelines to a term of imprisonment of 90

months followed by eight years of supervised release. The District Court did not depart

from the applicable Guidelines range.

       Thereafter, Luciano filed a pro se notice of appeal. On February 14, 2002,

Luciano’s counsel filed this Anders brief and a motion to withdraw. Luciano was sent a

copy of both the motion and the brief and was given the opportunity to respond pro se.

She has not filed a response. By order dated March 30, 2005, this Court also afforded

Luciano an opportunity to challenge her sentence under Booker in a separate letter to the

Court. No such letter has been filed with this Court.

                                            II.



                                            2
       When analyzing Anders briefs, we ask two questions: “(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). An attorney must demonstrate both that he has thoroughly examined the

record for appealable issues and that any raisable issues are frivolous. Id. In making this

showing, “[c]ounsel need not raise and reject every possible claim.” Id. Counsel needs

only to satisfy the “conscientious examination” standard set forth by the Supreme Court in

Anders. Id.

       Here, Counsel has referred this Court to the portions of the record that arguably

present non-frivolous issues and has addressed (1) whether the District Court had

jurisdiction to accept Luciano’s guilty plea, (2) whether Luciano’s guilty plea was valid,

and (3) whether the District Court imposed a legal sentence. Counsel concluded, and the

Government agrees, that there are no nonfrivolous issues for appeal.

       Upon review, we agree with the Government that Counsel has conducted a

conscientious examination of the issues and that no nonfrivolous issues exist with respect

to either the District Court’s jurisdiction or the validity of Luciano’s guilty plea. We do,

however, conclude that a nonfrivolous issue exists with respect to sentencing.

       Counsel’s Anders brief advises this Court as follows:

       The defendant was sentenced on July 22, 2002 [sic] prior to the Supreme
       Court’s decision in United States v. Booker and United States v. FanFan [sic],
       543 U.S. ____ (2005). These decisions have not been applied retroactively as
       of yet. However, neither of these decisions, or the decision in Blakely v.

                                              3
       Washington, 542 U.S. ____ (2004) would aid the defendant. In the case at bar,
       the defendant’s sentence was below the statutory maximum, and indeed, below
       the mandatory sentence had an 851 notice been filed. There were no findings
       by the Court that would have affected her sentence that were set forth
       specifically in the plea agreement. Thus, it is clear that her sentence was
       lawful.

       Counsel’s brief was filed on February 14, 2004, two months before this Court’s

decision in United States v. Davis, 407 F.3d 162 (3d Cir. 2005). In Davis, this Court

adopted a general policy of vacating sentences entered pursuant to pre-Booker law. See

id. at 165. We noted that “[w]e would be usurping the discretionary power granted to the

district courts by Booker if we were to assume that the district court would have given

[defendant] the same sentence post-Booker.” Id. (citing United States v. Oliver, 397 F.3d

369, 380 n.3 (6th Cir. 2005)) (modifications in original). Accordingly, Counsel’s brief is

incorrect that no nonfrivolous issues exist with respect to sentencing.

       This policy, however, only applies when a defendant affirmatively requests re-

sentencing under Booker. See id. at 166 (“Appellants have been directed to state whether

they wish to challenge their sentences under Booker. For those who do not, we consider

the appeal on the merits.”). This Court will not impose re-sentencing, which could result

in a greater sentence, on a defendant who does not request it. Here, Luciano has not

requested a remand in accordance with our Court policy, and, accordingly, we will not

remand this case to the District Court for re-sentencing. We will therefore grant

Counsel’s motion to withdraw.

                                            III.

                                             4
      We have considered all of the arguments raised by the parties and conclude that no

further discussion is necessary. We will affirm the judgment of conviction and sentence.

The motion to withdraw will be granted.




                                           5
