                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 11-4614
                                     ____________

                           UNITED STATES OF AMERICA

                                            v.

                             DANIEL R. RAMOS-TORRES
                              a/k/a MONO a/k/a DANNY

                                Daniel R. Ramos-Torres,
                                                       Appellant
                                     ___________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                        (D.C. Criminal No. 2-08-cr-00495-001)
                     District Judge: Honorable Susan D. Wigenton
                                      ___________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 September 28, 2012

      Before:   McKEE, Chief Judge, JORDAN, and VANASKIE, Circuit Judges

                               (Filed: December 4, 2012)
                                      ___________

                                       OPINION
                                      ___________

VANASKIE, Circuit Judge.

       Appellant Daniel Ramos-Torres pled guilty to one count of conspiracy to import

heroin in violation of 21 U.S.C. § 963. His appeal is before us on a brief submitted by his
attorney pursuant to Anders v. California, 386 U.S. 738 (1967). Counsel for Ramos-

Torres asserts that there are no nonfrivolous issues on appeal. Ramos-Torres, although

informed of his right to file a brief on his own behalf, has not done so. Having reviewed

the record, we agree with Ramos-Torres’ counsel that there are no non-frivolous issues in

this matter. Accordingly, we will affirm the District Court’s judgment and grant

counsel’s motion for leave to withdraw.

                                            I.

       We write primarily for the parties, who are familiar with the facts and procedural

history of this case. Accordingly, we set forth only those facts necessary to our analysis.

       Ramos-Torres was charged with conspiracy to import heroin and conspiracy to

distribute and possess with intent to distribute heroin. Ramos-Torres pled guilty,

pursuant to a written plea agreement, to count one of the two count Indictment, charging

conspiracy to import heroin. In the plea agreement, Ramos-Torres stipulated that the

conspiracy involved at least 10 kilograms, but less than 30 kilograms, of heroin. He also

admitted that he was a supervisor or manager within the conspiracy, thus warranting a

two-level increase in his offense level. The guidelines offense level for the amount of

heroin attributable to Ramos-Torres was 36. Accordingly, his total offense level was 38,

before any offsets. Ramos-Torres received a three-level reduction for acceptance of

responsibility, resulting in a final offense level of 35. The plea agreement acknowledged

that the appropriate offense level was 35. At his plea hearing, Ramos-Torres

acknowledged that he understood he was waiving his right to appeal any sentence



                                             2
imposed by the Court that fell within or below the agreed upon Guidelines offense level

of 35. 1 The plea agreement waiver reads in relevant part:

               Daniel Ramos-Torres knows that he has and, except as noted
               below in this paragraph, voluntarily waives, the right to file
               any appeal, any collateral attack, or any other writ or motion,
               including but not limited to an appeal under 18 U.S.C. § 3742
               or a motion under 28 U.S.C. § 2255, which challenges the
               sentence imposed by the sentencing court if that sentence falls
               within or below the Guidelines range that results from a total
               Guidelines offense level of 35.... The provisions of this
               paragraph are binding on the parties even if the Court
               employs a Guidelines analysis different from that stipulated
               to herein. Furthermore, if the sentencing court accepts a
               stipulation, both parties waive the right to file an appeal,
               collateral attack, writ, or motion claiming that the sentencing
               court erred in doing so.

(SA 7, ¶ 9).

       At sentencing, the Court granted the Government’s motion pursuant to U.S.S.G. §

5K1.1, and departed downward from a base offense level of 35 to 32. The sentencing

guideline range for offense level 32 and criminal history score I was 121 to 151 months.

On December 16, 2011, Ramos-Torres was sentenced to 121 months’ imprisonment.

                                             II.

       The District Court had jurisdiction under 18 U.S.C. § 3231, and we have appellate

jurisdiction under 28 U.S.C. § 1291.

                                              A.




       1
        With a criminal history category of I, Ramos-Torres’ advisory guidelines range
was 168 to 210 months of incarceration. The crime carried a mandatory minimum prison
term of ten years.
                                             3
       Pursuant to Anders, counsel for a defendant may seek to withdraw if, after

reviewing the District Court record, he or she is “persuaded that the appeal presents no

issue of even arguable merit.” See 3d Cir. L.A.R. 109.2(a). Specifically, counsel must

“(1) . . . satisfy the court that counsel has thoroughly examined the record in search of

appealable issues, and (2) . . . explain why the issues are frivolous.” United States v.

Youla, 241 F.3d 296, 300 (3d Cir. 2001) (citations omitted). Although not every

conceivable claim need be raised and rejected, counsel “must meet the ‘conscientious

examination’ standard set forth in Anders.” Id. When presented with an Anders brief, we

engage in a two-step analysis to consider: “(1) whether counsel adequately fulfilled

[Third Circuit Local Appellate Rule 109.2(a)’s] requirements; and (2) whether an

independent review of the record presents any nonfrivolous issues.” Id. If we find that

“the Anders brief initially appears adequate on its face,” the second step of the inquiry

will be “confine[d] . . . to those portions of the record identified by . . . [the] Anders

brief.” Id. at 301. If this Court agrees with counsel’s assessment of the appealable

issues, we “will grant trial counsel’s Anders motion and dispose of the appeal without

appointing new counsel.” Id. at 300. When reviewing an Anders motion, we exercise

plenary review. See Simon v. Gov’t of Virgin Islands, 679 F.3d 109, 114 (3d Cir. 2012).

                                                B.

       Ramos-Torres’ counsel identifies one potentially appealable issue: whether the

District Court erred in applying the two-level enhancement for defendant’s role as a

supervisor or manager in the conspiracy. This contention flies in the face of Ramos-

Torres’ stipulation in the plea agreement that he did occupy such a position in the

                                               4
conspiracy, and, in any event, is barred by the appeal waiver set forth in the plea

agreement.

       This Court “will not review the District Court’s application of the sentencing

enhancements, or otherwise review [a] sentence for reasonableness, if [the defendant]

validly waived his right to that review.” United States v. Corso, 549 F.3d 921, 928 (3d

Cir. 2008); United States v. Khattak, 273 F.3d 557, 562 (2001). The appellate waiver in

this case contained substantially the same language as the waiver upheld in United States

v. Gwinnett, 483 F.3d 200, 204 (2007) (upholding waiver in plea agreement that stated

that the Government and defendant “‘waive certain rights to file an appeal, collateral

attack, and writ or motion after sentencing, including but not limited to an appeal under

18 U.S.C. § 3742’”). Ramos-Torres’ waiver forfeited the right to file any appeal

challenging the sentence imposed by the District Court so long as the sentence fell within

or below the Guidelines range that resulted from a total guidelines offense level of 35.

His sentence did in fact fall below the sentencing guideline range for a base offense level

of 35. Therefore, his appellate waiver bars his present appeal unless it is unenforceable.

       Appellate waivers will be enforced unless the Defendant can show that either it

was not “entered into knowingly or voluntarily,” or that it would “work a miscarriage of

justice.” Khattak, 273 F.3d at 563. In the present case, Ramos-Torres signed the plea

agreement, consulted with counsel, and engaged in a colloquy with the District Court

regarding the rights he was waiving. Ramos-Torres agreed with the base offense level,

agreed with the stipulated amount of heroin involved in the case, and agreed that he was a



                                             5
supervisor or manager in the conspiracy. There is no evidence that would suggest that

Ramos-Torres did not knowingly and voluntarily enter into the plea agreement

       Our review of the record also fails to disclose any nonfrivolous ground, not

covered by the waiver, to support a suggestion that manifest injustice would result by

enforcing the appellate waiver here. Because Ramos-Torres entered into the plea

agreement knowingly and voluntarily, his appeal is barred by the appellate waiver. Thus,

as defense counsel asserts, there are no non-frivolous issues that could be presented here.

                                          III.

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

grant defense counsel’s motion to withdraw.




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