                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-17-2004

USA v. Franco-Sanchez
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3388




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                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No: 02-3388


                              UNITED STATES OF AMERICA

                                              v.

                                    JULIO FRANCO

                                          Julio Franco-Sanchez,
                                                         Appellant

                          ______________________________

                       Appeal from the United States District Court
                              for the District of New Jersey
                                 (D.C. No. 01-cr-00794)
                         District Judge: Dennis M. Cavanaugh


                       Submitted Under Third Circuit LAR 34.1(a)
                                 on September 27, 2004

                  Before: ROTH, BARRY and GARTH, Circuit Judges

                               (filed: December 17, 2004)




                                        OPINION

ROTH, Circuit Judge:

       Counsel for Julio Franco-Sanchez has filed a motion to withdraw from the case

and has submitted a brief to support this appeal pursuant to Anders v. California, 386 U.S.
738 (1967). Counsel argues that there are no non-frivolous issues that can be raised on

appeal by France-Sanchez. Franco-Sanchez was given a copy of the motion and the brief

with the notice that he could file a pro se brief. He elected not to do so.

       Julio Franco-Sanchez is a citizen of Ecuador. He is not a legal resident of the

United States. On July 5, 1988, Franco-Sanchez was convicted in the United States

District Court for the Southern District of Texas for conspiring to possess a controlled

substance with the intent to distribute. This offense qualifies as an aggravated felony

under 8 U.S.C. § 1101(a)(43). After Franco-Sanchez served his sentence, he was

deported back to Ecuador on November 2, 1991. Before boarding the plane, the INS gave

Franco-Sanchez INS Form I-294. This form stated that he was not to re-enter the United

States within five years and that if he returned to the country in violation of the order, he

would receive a prison sentence up to two years.

       Appellant returned illegally into the United States on January 7, 1997, and took up

residence in Jersey City, New Jersey, where he was found and arrested by INS agents on

May 23, 2001. He pled guilty to violating 8 U.S.C. §§ 1326(a) and (b)(2). On August 19,

2003, the District Court sentenced Franco-Sanchez to 41 months imprisonment, which

was at the lower end of the applicable federal sentencing guidelines. Franco-Sanchez

filed an appeal of this judgment of sentence.

       After reviewing counsel’s Anders brief, we conclude that this case does not raise

any non-frivolous issues. Therefore, we will affirm the District Court’s sentence and we



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will also grant counsel’s motion to withdraw.

       We adhere to a twofold inquiry when analyzing Anders briefs. United States v.

Youla, 241 F.3d 296, 300 (3d Cir. 2001). This inquiry consists of the following: “(1)

whether counsel adequately fulfilled the rule’s requirements; and (2) whether an

independent review of the record presents any nonfrivolous issues.” Id. Regarding the

first issue, we find that counsel’s brief is adequate. When an attorney submits an Anders

brief, his duties are (1) to demonstrate to the court that he has thoroughly examined the

record for appealable issues, and (2) to demonstrate that the issues are frivolous. Id. In

attending to his duties “[c]ounsel need not raise and reject every possible claim.” Id.

Counsel needs only to satisfy the “conscientious examination” standard set forth in

Anders. Id. We are satisfied that counsel has met this standard. He diligently searched

the record for any potential appealable issues arising from the plea proceeding and the

sentencing proceeding and supported his claims of frivolousness with citations to relevant

case law. Thus, the Anders brief inquiry turns on our independent search of the record.

Id.

       When an Anders brief appears adequate on its face, our independent examination

of the record is to be guided by the Anders brief itself. Youla, 241 F.3d at 301. Counsel

raises three possible issues for review in his Anders brief: (1) whether the District Court

conducted a sufficiently thorough plea hearing in order to ensure that the plea was

knowing, intelligent and voluntary; (2) whether Franco-Sanchez’s due process rights were



                                             3
violated because he relied on an erroneous statement contained in INS Form I-294, which

stated that he could not be imprisoned more than two years for illegal re-entry; and (3)

whether the sentence was improper. On the basis of our review, we agree that all three

issues are without merit, and hence frivolous.

       The guilty plea was made knowingly, intelligently and voluntarily. The District

Court carefully explained to Franco-Sanchez his rights and the ramifications of entering a

plea of guilty. The District Court also made sure that the appellant understood the charge

and the potential penalties, determined that Franco-Sanchez was satisfied with his

attorney, and ascertained that the plea presented by the prosecution was correct. The

record clearly supports the finding that Franco-Sanchez made a knowing, intelligent and

voluntary waiver.

       With respect to the erroneous INS Form I-294, we have dealt with this issue in

similar circumstances and have held that the inaccuracy of the form does not violate due

process. United States v. McCalla, 38 F.3d 675, 679 (3d Cir. 1994). While we reiterate

the lamentable nature of this error, we have held that it is the criminal statute, not the

language of the INS form, “which must clearly set forth the activity which constitutes a

crime and the punishment authorized for committing such a crime.” Id. There is

therefore no violation of due process here.

       As to sentencing, again there was no error. The applicable sentencing guideline

range was calculated in the presentence report. The District Court indicated the



                                               4
guideline range and how it was chosen. Franco-Sanchez was then sentenced to the

minimum sentence within the range. We find no problem with the sentencing procedure

used by the District Court. Any argument that the sentencing process was illegal would

be frivolous.

       After our independent examination of the record, we find that there are no non-

frivolous issues that could be raised on appeal. Thus, we will affirm the District Court’s

judgement of sentence and we will grant counsel’s motion to withdraw.




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