                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 11-1040



                           UNITED STATES OF AMERICA

                                            v.

                           NARCISO RIVERA MARTINEZ,

                                                 Appellant



                    On Appeal from the United States District Court
                              for the District of New Jersey
                              (D.C. No. 2-08-cr-00814-001)
                     District Judge: Honorable Susan D. Wigenton
                                      ____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 on February 7, 2012

         Before: SLOVITER and VANASKIE, Circuit Judges, and PADOVA,
                             Senior District Judge*

                                (Filed: February 8, 2012)

                                    _______________

                               OPINION OF THE COURT
                                   _______________



  *
    The Honorable John R. Padova, Senior District Judge of the United States District Court
for the Eastern District of Pennsylvania, sitting by designation.
PADOVA, Senior District Judge.

       Appellant Narciso Rivera Martinez pled guilty to two counts of an indictment

charging that he knowingly and intentionally conspired and agreed with others to distribute

one kilogram or more of heroin from November 2007 to December 2008. He was sentenced

to 120 months’ imprisonment. He subsequently filed a notice of appeal, and defense counsel

moved to withdraw as appellate counsel, filing a brief pursuant to Anders v. California, 386

U.S. 738 (1967). Although Appellant received an extension of time to file a pro se brief, he

has failed to exercise that right. For the following reasons, we will grant defense counsel

leave to withdraw and affirm the judgment of the District Court.

                                              I.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a). We exercise plenary review to determine whether there are any nonfrivolous issues

on appeal. Penson v. Ohio, 488 U.S. 75, 80 (1988). The determination of frivolousness is

informed by the standard of review for each potential claim raised. See, e.g., United States

v. Schuh, 289 F.3d 968, 974-76 (7th Cir. 2002).

                                              II.

       As we write primarily for the parties, who are familiar with the factual context and

legal history of this case, we will set forth only select background facts. An investigation by

the Drug Enforcement Administration revealed Martinez to be a wholesale level customer

of an Ecuadorian heroin importation organization. Wiretap evidence of multiple intercepted

telephone conversations showed that Martinez took concerted steps to secure shipments of

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heroin, prepare drugs for distribution, and ensured that drug proceeds were remitted back to

the suppliers in Ecuador. At his guilty plea hearing, Martinez admitted that he conspired to

distribute and possess with intent to distribute one kilogram or more of heroin, contrary to

21 U.S.C. § 841(a)(1) and 841(b)(1)(A), and in violation of 21 U.S.C. § 846, but did not

stipulate to an exact amount. The Government’s proffer revealed information from a

confidential source that Martinez remitted approximately $316,000 in drug proceeds to the

organization, and was engaged in a course of distribution activity that involved well over

three kilograms of heroin.

       Although Martinez participated in two proffer sessions with the Government, both

those meetings were terminated based upon the collective view of the investigating agents

that Martinez was not being truthful. Accordingly, the Government did not assent to

eligibility for the safety valve provision of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. In

supplying information to the Probation Office on the offense conduct, the Government

notified Appellant that it would not approve safety valve relief. Thereafter, defense counsel

notified the Government that he would seek a sentencing hearing on particular Guidelines

issues. The parties subsequently agreed to a resolution of the sentencing issues, resulting in

the Government agreeing that Martinez should be sentenced at a Total Offense Level of 31,

a Criminal History Category of I, that the statutory mandatory minimum sentence of 10 years

should apply, and that it would not seek an aggravating role enhancement under the

Guidelines. In exchange, Martinez would concede he was not eligible for safety valve relief.

       In the Presentence Report, Probation calculated that Appellant had a Base Offense

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Level of 34 pursuant to U.S.S.G. § 2D1.1(c)(3), because the offense involved at least 3 but

less than 10 kilograms of heroin. Probation next applied a two-level enhancement pursuant

to U.S.S.G. § 3B1.1 because Martinez exercised management responsibility in the drug

organization. Probation also applied a three-level reduction for acceptance of responsibility,

resulting in a Total Offense Level of 33. Probation calculated Appellant’s Criminal History

Category as I based on zero criminal history points. As a result, according to Probation,

Appellant’s advisory Sentencing Guidelines range was 135-168 months and noted that

Martinez was subject to a 10 year mandatory minimum term, pursuant to 21 U.S.C. §

841(a)(1) and (b)(1)(A).

       The sentencing judge recognized that the Guidelines range was advisory and found

that Martinez was not eligible for the safety valve provision. Based upon submissions of

counsel, the court granted a downward departure in accordance with the parties’ agreement,

sentencing Martinez as if his Total Offense Level was 31 with a Criminal History Category

of I, ultimately imposing a sentence of 120 months in accordance with the mandatory

minimum. Martinez was also sentenced to a term of supervised release of 4 years. Appellant

timely filed this appeal.



                                             III.

       Our role in analyzing an Anders brief is twofold. First, we determine whether the

Anders brief is adequate on its face. United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001)

(citation omitted). Second, we determine whether an independent review of the record

                                              4
reveals any issues that are not frivolous. Id. (citation omitted). An adequate Anders brief

“satisf[ies] the court that counsel has thoroughly examined the record in search of appealable

issues,” and “explain[s] why the issues are frivolous.” Id. (citing United States v. Marvin,

211 F.3d 778, 780 (3d Cir. 2000)). “Counsel need not raise and reject every possible claim.

However, at a minimum, he or she must meet the ‘conscientious examination’ standard set

forth in Anders.” Id. (citing Marvin, 211 F.3d at 780).

        We find Counsel’s Anders brief to be adequate on its face. Where, as here, an

appellant has pled guilty, there are three general issues still open for appeal: (1) the District

Court’s jurisdiction to enter the conviction and impose sentence; (2) the validity or

voluntariness of Appellant’s guilty plea; and (3) the legality of Appellant’s sentence. See

18 U.S.C. § 3742(a); United States v. Broce, 488 U.S. 563, 569 (1989). Although Counsel

addressed only the third of these three issues, we conclude that it was unnecessary to address

the other two issues because they are patently frivolous.1 See Marvin, 211 F.3d at 781.

        Counsel asserts that the only possible issue for review is whether the district court


    1
     The District Court clearly had jurisdiction over Appellant’s crimes because he was
charged with a 21 U.S.C. § 846 conspiracy to violate 21 U.S.C. § 841(a)(1) and
841(b)(1)(A), which are criminal offenses against the laws of the United States. See 18
U.S.C. § 3231. In addition, the record shows that the District Court conducted a thorough
colloquy of Appellant before accepting his plea, as required by Fed. R. Crim. P. 11(b) and
Boykin v. Alabama, 395 U.S. 238 (1969). The Court informed Appellant of the nature of the
charges against him, the rights he forfeited by pleading guilty, the maximum penalties
permitted for his offenses, the advisory nature of the Sentencing Guidelines, and the factual
basis for his guilty plea. See United States v. Schweitzer, 454 F.3d 197, 202 (3d Cir. 2006).
Looking at the totality of the circumstances surrounding Appellant’s plea, it is therefore plain
that Appellant voluntarily and knowingly pled guilty and any claim to the contrary would be
patently frivolous.

                                               5
erred in not according Martinez the safety valve reduction pursuant to U.S.S.G. § 5C1.2. We

agree with Counsel that this issue would be frivolous. Appellant and the Government

reached an agreement whereby he gave up his request for safety valve relief, in return for

which the Government did not seek an aggravating role enhancement. There is nothing in

the record to indicate that Appellant’s decision to forego safety valve relief was anything

other than knowing and voluntary. The record also indicates that Appellant was ineligible

for safety valve relief because he had not been truthful in his proffer sessions. As Appellant

was sentenced in accordance with the statutory mandatory minimum, and the trial judge

committed no error in calculating the advisory Guidelines sentence, we agree that there are

no non-frivolous sentencing issues for appeal.

                                             IV.

       For the foregoing reasons, we conclude that Counsel has fulfilled his obligation under

Anders and the Local Appellate Rules to provide an adequate no-merit brief, and our

independent review of the record yields no non-frivolous issues for appeal. We will

therefore affirm the judgment of the District Court, grant Counsel’s motion to withdraw and

deny Appellant’s motion for appointment of new counsel.




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