                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-30-2002

USA v. Roldan-Hernandez
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2368




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Recommended Citation
"USA v. Roldan-Hernandez" (2002). 2002 Decisions. Paper 471.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/471


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                                                 NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                          No. 01-2368




                    UNITED STATES OF AMERICA

                                    v.

                  ADOLFO LEON ROLDAN-HERNANDEZ


                      Adolfo Roldan-Hernandez,
                                      Appellant




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

                  (Dist. Court No. 99-cr-226)
            District Court Judge: Curtis J. Joyner



           Submitted Under Third Circuit LAR 34.1(a)
                          May 24, 2002

       Before: ALITO, MCKEE, and WALLACE, Circuit Judges.

                 (Opinion Filed: July 26, 2002)




                      OPINION OF THE COURT



PER CURIAM:
          Because the parties are familiar with the background of this appeal, it will
not be set out.
          The first issue presented for review is whether the District Court violated
Apprendi v. New Jersey, 530 U.S. 466 (2000). The defendant acknowledged in his plea
agreement that he distributed five kilograms or more of cocaine. This agreement resulted
in a statutory minimum sentence of 10 years of imprisonment and a maximum of life
imprisonment. This Court holds that an Apprendi issue does not arise unless a
defendant’s sentence exceeds the statutory maximum sentence. See United States v.
Vazquez, 271 F.3d 93, 98 (3d Cir. 2001) (en banc); see also United States v. Cotton, 70
U.S.L.W. 4429 (2001) ("omission of drug quantity from the indictment" does not
"seriously affect the fairness, integrity, or public reputation of judicial proceedings").
The District Court sentenced the defendant to 210 months of imprisonment, well within
the statutory sentence range. Therefore, this argument must fail.
          The second issue is whether the District Court improperly denied the
defendant an offense-level reduction under the safety-valve provision of the Sentencing
Guidelines, U.S.S.G. 5C1.2. The safety-valve provision allows a two-level reduction
from the applicable offense level if the defendant meets five specified requirements, one
of which is that, no later than at the time of sentencing, the defendant must have
"truthfully provided to the government all information and evidence [that he] has
concerning the offense . . . that [was] part of the same course of conduct or . . . common
scheme or plan." The District Court denied the defendant’s request for a safety-valve
reduction because he "was not forthcoming and truthful in his totality of involvement in
the conspiracy to distribute cocaine." Appendix at 386. We can reject this finding only
if we find it was clearly erroneous. See United States v. Sabir, 117 F.3d 750, 751 (3d
Cir. 1997).
          The record establishes that the defendant was responsible for the
distribution of approximately 800 kilograms of cocaine, but the defendant maintained
through the time of sentencing that he was responsible for distributing only five
kilograms of cocaine. He thus failed to give a full, forthright account of his involvement
in the conspiracy. Under these circumstances, the District Court did not err in finding the
safety-valve provision inapplicable. See id. at 754.
          The third issue presented for review is whether the District Court should
have departed downward from the Sentencing Guidelines under U.S.S.G. 5k2.12. The
defendant argued at sentencing that he committed the crimes under duress and coercion
from violent Colombian gangs. The District Court heard arguments from both sides on
the coercion and duress claims and found an insufficient basis to support a departure on
either claim. Appendix at 389-90. We lack jurisdiction to review a district court’s
discretionary refusal to depart from the applicable guideline range where the court
recognized its authority to depart downward but declined to do so in the exercise of its
discretion. See, e.g., United States v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir. 1991).
Therefore, we lack jurisdiction over this argument.
          The fourth issue is whether the defendant knowingly and intelligently pled
guilty to the crime for which he was sentenced. He argues that he was not informed and
could not have known that drug type and quantity was an element of the offense. A
defendant must enter into a guilty plea knowingly and voluntarily. See Boykin v.
Alabama, 395 U.S. 238, 243 (1969). The defendant pled guilty to "conspiracy to
distribute more than five kilograms of cocaine," in violation of 21 U.S.C. 846.
Supplemental Appendix at 23. The District Court ensured that the defendant received a
copy of the indictment and discussed it with his attorney. Id. at 4. The District Court
reviewed the essential terms of the plea agreement with the defendant and inquired
whether he understood those terms. The defendant told the Court that he did. Id. at 8.
The Court then informed the defendant that the applicable statutory sentence range was a
minimum of ten years of imprisonment and a maximum of life imprisonment, and the
Court emphasized that it could not determine the applicable Sentencing Guideline’s
range until the completion of the presentence report. Id. at 9-11.    The District Court
then went on to review the rights that the defendant would be waiving by pleading guilty.
The record of the Rule 11 plea colloquy demonstrates that the defendant had an adequate
understanding of the charges to which he pled guilty. Because the defendant was
sentenced below the maximum sentence, he cannot argue that his plea was not knowing
and voluntary.
          The fifth issue presented for review is whether the defendant received
effective assistance of counsel. Absent a narrow set of circumstances and a sufficient
record, "ineffective assistance of counsel claims are not generally entertained on direct
appeal." United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991).    Because a
factual basis for this claim has not been fully developed, the proper avenue for pursuing
this claim is in a collateral proceeding in the District Court. Id.
          We have considered all the arguments advanced in the brief submitted by
the defendant’s attorney, as well as those contained in the defendant’s pro se brief, and
we find no basis for reversal.
          Accordingly, the defendant’s conviction and sentence are affirmed.
