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


11-6-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3147




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No: 02-3147


                           UNITED STATES OF AMERICA

                                            v.

                                  CARLOS GARCIA,
                                        Appellant

                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (Crim. No. 01-00546-03)
                          District Judge: Hon. Jan E. DuBois

                    Submitted pursuant to Third Circuit LAR 34.1(a)
                                  November 3, 2003

                      Before: McKEE and SMITH, Circuit Judges,
                            and WEIS, Senior Circuit Judge

                               (Filed November 6, 2003)

                                       OPINION

McKEE, Circuit Judge.

      Carlos Garcia appeals from the district court’s judgment of conviction and

sentence. We agree with defense counsel’s representation that there are no non-frivolous

issues for appeal. Accordingly, we will affirm. See, Anders v. California, 386 U.S. 738

(1967).
                                              I.

       Inasmuch as we write only for the parties, it is not necessary to recite the facts of

this case. It is sufficient for our purposes to note that on July 17, 2001, Garcia was

arrested with two other individuals and charged in a complaint and warrant with

conspiracy to distribute heroin and the distribution of heroin. Thereafter, a grand jury

returned an indictment charging Garcia and two other individuals with conspiracy to

distribute more than one kilogram of heroin, in violation of 21 U.S.C. § 846 (Count One).

Garcia was also charged with distribution, and aiding and abetting the distribution of

heroin, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts Five and Six).

The government also sought criminal forfeiture of designated property pursuant to 21

U.S.C. § 853. On December 21, 2001, pursuant to a guilty plea agreement, Garcia

entered a guilty plea to Counts One, Five, and Six of the indictment.

       Garcia was thereafter sentenced to a term of imprisonment of 46 months on Counts

One, Five and Six (such terms to run concurrently), a term of four years supervised

release, no fine, and a special assessment of $300. Garcia, acting pro se, filed a timely

appeal.

                                             II.

       Appointed counsel for Garcia has filed an Anders brief stating that he is unable to

identify any non-frivolous issue for review. An appointed appellate counsel who “finds

[a] case to be wholly frivolous, after a conscientious examination of” the case, must so



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advise the court of appeals and request permission to withdraw. Anders v. California,

386 U.S. 738, 744 (1967). Counsel’s request must be accompanied by a “brief referring

to anything in the record that might arguably support the appeal.” Id. The brief must

identify any “issue arguably supporting the appeal even though the appeal was wholly

frivolous,” Smith v. Robbins, 528 U.S. 259, 285 (2000), “explain why the issues are

frivolous,” United States v. Marvin, 211 F.3d 778, 781 (3d Cir. 2000), and show that

counsel “thoroughly scoured the record in search of appealable issues.” Id. at 780; see

also United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001).

       Defense counsel’s Anders brief refers us to the portions of the record that arguably

present non-frivolous issues. Counsel thereby identifies the following issues: (1) whether

the guilty plea was entered knowingly and lawfully and (2) whether the sentence was

lawful. However, counsel has concluded that any claim of error would be frivolous. We

agree. The guilty plea clearly met the standards of Boykin v. Alabama, 395 U.S. 238

(1969) and Fed.R.Crim.P. 11. Moreover, the concurrent sentences imposed on Garcia

represent the lowest appropriate sentences under the applicable sentencing guidelines.

There were no grounds or special circumstances to justify a lesser sentence than the

minimum required by the guidelines, such as a U.S.S.G. § 5K1.1 motion. The sentencing

court therefore properly imposed a sentence that comported with the range of sentences

set forth by the sentencing guidelines.

       Defense counsel has informed us that Garcia sent him a letter in which he



                                             3
complains that an error was committed in not adjusting the offense level downward

pursuant to U.S.S.G. § 3B1.2, which permits a downward adjustment in the offense level

when a defendant’s participation in a criminal enterprise is not significant. However,

Garcia did not raise this issue at his sentencing hearing. Therefore, a plain error standard

applies to Garcia’s claim. However, there is no plain error here. While Garcia’s

involvement in the criminal enterprise may not have been as extensive as the other

participants, his participation was neither minimal nor minor. The record clearly shows

that Garcia supplied heroin to his co-defendants knowing that they were going to

distribute it and that he had a significant amount of heroin stored in his residence. Thus,

no error was committed by not applying § 3B1.2.

       Moreover, we note that Garcia’s counsel supplied Garcia with a copy of his Anders

brief and Garcia was given time to raise any non-frivolous argument in a pro se brief. No

such brief was filed.

                                            III.

       Accordingly, we will affirm the sentence of conviction and judgment.




TO THE CLERK OF THE COURT:

              Please file the foregoing Opinion.


                                                         /s/ Theodore A. McKee
                                                         Circuit Judge



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