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


12-17-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2248




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"USA v. Perez" (2003). 2003 Decisions. Paper 49.
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                                          NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               _______________

                                      No. 03-2248
                                   ________________

                            UNITED STATES OF AMERICA
                                      v.

                                 ADRIANO PEREZ,
                                            Appellant
                       ____________________________________

                On Appeal From The District Court of The Virgin Islands
                           (D.C. Criminal No. 02-cr-00038)
                     District Judge: Honorable Thomas K. Moore
                    _______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                December 8, 2003
                   Before: NYGAARD, BECKER, and STAPLETON,
                                   Circuit Judges

                                (Filed December 17, 2003)
                               _______________________

                                      OPINION
                               _______________________

BECKER, Circuit Judge.

       This is an appeal by defendant Adriano Perez from the judgment in a criminal case

following a plea of guilty to drug charges. In the plea agreement Perez stipulated that the

amount of heroin involved in count seven was two kilograms and that the amount of

cocaine involved in count eight was fourteen kilograms. In his Application for
Permission to Enter Plea of Guilty he admitted that he was guilty of the offenses and was

making no claim of innocence. Although Perez later denied his involvement, he declined

the District court’s offer to allow him to withdraw his plea. The District Court accepted

the recommendations in the presentence report that Perez was not eligible for the “safety

valve” exceptions to the minimum mandatory sentence of ten years’ imprisonment

following by five years of supervised release. The District court also departed downward

sua sponte from the minimum guideline fine of $12,5000 and imposed a $4,000 fine.

Perez filed a timely appeal

       Following the appeal, defense counsel filed a motion to withdraw and a brief in

support of this motion pursuant to the decision in Anders v. California, 386 U.S. 738

(1967). In that brief, after a statement of the case and the facts, counsel makes the

following statement:

              Counsel for Appellant has diligently searched the record in this
       matter in good faith, and is not able to assert to this Court hat there are any
       appealable issues which would warrant reversal of Appellant’s conviction
       However, counsel has found issues which warrant further scrutiny by this
       Court.

We have carefully examined the record, as well as the issues that counsel has suggested

warrant further scrutiny by this Court. However, none of them are of any help to the

defendant.

       In the sentencing proceeding, the Court departed downward from the guideline

fine, but, according to Perez, not far enough. However, we have held that a court’s


                                              2
decision not to depart downward is not appealable. United States v. Denardi, 892 F.2d

269 (3d Cir. 1989). While the writer is flattered by the suggestion that his dissenting

opinion in Denardi was correct, the fact is that the majority opinion has prevailed here

and in seven other circuits. At all events even if the dissent were the law, it would not

help defendant for the facts in this case do not suggest that the refusal to depart

downward below $4,000 was “plainly unreasonable” or grossly disproportional to the

gravity of the offenses. While counsel notes that it was arguable after Apprendi v. New

Jersey, 530 U.S. 466 (2000), that the determination of whether Perez qualified for the

safety valve should have been treated as an element of the offense since it raises the

minimum sentence, this argument was rejected in Harris v. United States, 536 U.S. 545,

572 (2002).

       After thorough examination of the proceedings, we agree with counsel that there

are no non-frivolous issues to raise on appeal. Our jurisprudence requires that counsel in

an Anders situation adequately attempt to uncover the best arguments for his or her client.

See United States v. Donald Wayne Marvin, 211 F.3d 778 (3d Cir. 1999). However,

having read the entire record, we are satisfied that counsel has fulfilled his Anders

obligations. Indeed we commend counsel on his diligence, a model of fidelity to Anders

obligations. We will therefore grant counsel’s request to withdraw, and will affirm the




                                              3
judgment on the merits.1




TO THE CLERK:

              Please file the foregoing opinion.




                                        /s/ Edward R. Becker
                                             Circuit Judge




  1
   We also note our view that, 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 Supreme Court.
3d Cir. LAR 109.2(b)(2000).

                                             4
