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


12-16-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4473




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"USA v. Cumplido" (2003). 2003 Decisions. Paper 58.
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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               _______________

                                      No. 02-4473
                                   ________________

                           UNITED STATES OF AMERICA

                                            v.

                              JAIRO SIERRA CUMPLIDO,
                                                               Appellant

                      ____________________________________

                On Appeal From The District Court of The Virgin Islands
                                (D.C. No. 01-cr-00254-1)
                     District Judge: Honorable Thomas K. Moore
                    _______________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  December 9, 2003

                  Before: NYGAARD, BECKER, and STAPLETON,
                                Circuit Judges

                               (Filed: December 16, 2003)

                               _______________________

                                      OPINION
                               _______________________

BECKER, Circuit Judge.

       This is an appeal by defendant Jairo Sierra-Cumplido from the judgment in a

criminal case following a plea of guilty to re-entry after deportation. 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. While the writer is flattered by the suggestion that his dissenting

opinion in United States v. Denardi, 892 F.2d 269 (3d Cir. 1989), 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 was “plainly unreasonable” or would result in

unwarranted disparity between sentencing judges. Sierra-Cumplido has previously been

sent to prison twice for involvement in cocaine distribution offenses which were

committed while he was a permanent resident of the United States. The second cocaine

conspiracy offense was committed while he was still on parole for the first offense, and

the re-entry offense was committed while he was on supervised release for the second

drug offense. And despite mitigating factors, it cannot be said on the record that the

refusal to depart was plainly unreasonable or a gross abuse of discretion.



                                              2
       Counsel also directs us to United States v. Perakis, 937 F.2d 110 (3d Cir. 1991)

and United States v. King, 53 F.3d 589 (3d Cir. 1995), but neither of these cases help

defendant either.

       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

judgment on the merits.1




  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).

                                              3
TO THE CLERK:

         Please file the foregoing opinion.




                                  /s/ Edward R. Becker
                                          Circuit Judge




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