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


6-6-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1998




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"USA v. Ramos" (2005). 2005 Decisions. Paper 1068.
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                                                     NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                            No. 04-1998




                 UNITED STATES OF AMERICA

                                 v.

 LUIS RAMOS, A/K/A JULIO GARCIA, A/K/A JULIO ROBLES, A/K/A
JULIO ROBLES-GARCIA, A/K/A JUAN ABREU, A/K/A JULIO GARCIA
                        DELACRUZ

                                      Luis Ramos, a/k/a Juan De Le Cruz,
                                      Appellant


   ON APPEAL FROM THE UNITED STATES DISTRICT COURT
       FOR THE EASTERN DISTRICT OF PENNSYLVANIA

            (District Court Criminal No.: 02-cr-00801-1)
            District Court Judge: Hon. Harvey Bartle, III


          Submitted Pursuant to Third Circuit LAR 34.1(a)
                         March 29, 2005

       Before: ALITO, SMITH, and ROSENN, Circuit Judges.

                       (Filed: June 6, 2005)




                    OPINION OF THE COURT
PER CURIAM:

       This is an appeal by defendant Luis Ramos from a conviction for several drug-

related offenses, namely, conspiracy to distribute one kilogram or more of heroin in

violation of 21 U.S.C. § 846, unlawfully maintaining a place for the manufacture of

controlled substances in violation of 21 U.S.C. § 856, distributing and aiding and abetting

the distribution of one kilogram or more of heroin in violation of 21 U.S.C. § 841(a)(1),

possession with intent to distribute and aiding and abetting in the possession with intent to

distribute of one or more kilograms of heroin in violation of 21 U.S.C. § 841(a)(1), and

distribution and aiding and abetting in the distribution of a hundred or more grams of

heroin in violation of 21 U.S.C. § 841(a)(1). Ramos pled guilty to the charges pursuant

to a bargained-for plea agreement. Counsel for Ramos has filed a brief under Anders v.

California, 386 U.S. 738 (1967), stating that, after careful review of the record, he cannot

raise any meritorious issues and that the appeal is wholly frivolous. We are satisfied that

counsel has fulfilled his Anders obligations, and we agree that the appeal is frivolous.

We therefore grant counsel’s motion to withdraw and dismiss the appeal.

       Ramos is precluded from bringing an appeal due to a waiver contained in his plea

agreement. Under the terms of the agreement, Ramos agreed to waive all direct appeals

except in the case that his sentence exceeded the statutory maximum or the sentencing

judge erroneously departed upward from the otherwise applicable sentencing guideline

range. The sentencing court reviewed this provision with Ramos thoroughly during the



                                             2
Rule 11 colloquy. “Waivers of appeals, if entered into knowingly and voluntarily, are

valid, unless they work a miscarriage of justice.” United States v. Khattak, 273 F.3d 557,

563 (3d Cir. 2001). Ramos’ only argument for why the waiver of appeal should not be

enforced is that the scope and value of his assistance to Federal prosecutors warranted a

further downward departure, and therefore to uphold the sentence without review would

work a miscarriage of justice. Insofar as this argument fails to present a non-frivolous

claim on the merits, it does not provide grounds for avoiding the waiver of appeal. See

United States v. Parker, 902 F.2d 221, 222 (3d Cir. 1990) (“The circumstances in which a

defendant may appeal a sentence . . . do not include situations in which a defendant is

seeking an enhanced downward departure.”).

       Ramos also contends that he is entitled to resentencing as a result of the Supreme

Court’s decision in United States v. Booker, 160 L. Ed. 2d 621, 543 U.S. , 125 S. Ct.

738 (2005). Our court has joined four other courts of appeals in holding that “where a

criminal defendant has voluntarily and knowingly entered into a plea agreement in which

he or she waives the right to appeal, the defendant is not entitled to resentencing in light

of Booker.” United States v. Lockett, 406 F.3d 207, 214 (3d Cir. 2005). Ramos agreed to

a sentence governed by the pre-Booker sentencing regime, and is not entitled to the

benefit of subsequent favorable legal developments.

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

Defense counsel’s motion to withdraw is granted.
