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


6-17-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1979




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                                                              NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                    No. 03-1979
                                   ____________

                          UNITED STATES OF AMERICA

                                          v.

                              LISANDRO MARTINEZ,

                                                    Appellant.

                             ______________________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                                 (No. 02-CR-00313)
                       District Judge: Mary A. McLaughlin
                             _____________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   May 28, 2004

               BEFORE: RENDELL and COW EN, Circuit Judges, and
                     SCHWARZER,* Senior District Judge

                           (Opinion Filed: June 17, 2004)




      *
       The Honorable William W Schwarzer, Senior United States District Judge for the
Northern District of California, sitting by designation.

                                          1
                              ________________________

                               OPINION OF THE COURT
                              ________________________

SCHW ARZER, Senior District Judge:

              Lisandro Martinez pled guilty to being a felon in possession of a firearm

and ammunition in violation of 18 U.S.C. §§ 922(g) and 924(e). Martinez timely

appealed the sentence imposed by the district court, but his counsel has filed an Anders

brief asserting that the appeal raises no nonfrivolous issues and moving to withdraw. The

district court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction

pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We will dismiss the appeal and

grant counsel’s motion.

                     FACTUAL AND PROCEDURAL HISTORY

              The presentence report (“PSR”) stated that Martinez had been convicted of

six prior controlled-substances crimes as an adult. He had pled guilty and was sentenced

for five of those crimes in a consolidated proceeding. The PSR recommended that the

district court find Martinez an armed career criminal under United States Sentencing

Guideline (“U.S.S.G.”) § 4B1.4, and calculated Martinez’s criminal history category to be

VI. Martinez did not object to the PSR. The district court adopted the PSR’s conclusions

and sentenced Martinez to 188 months’ imprisonment, the bottom of the guideline range.

              Martinez appealed, but his counsel has filed an Anders brief asserting that

there are no nonfrivolous appellate issues. Martinez did not file a pro se brief opposing

                                             2
the motion, but he apparently instructed his counsel to raise two issues on his behalf:

                     A. That the Appellant is not subject to Sentencing
              Guideline Section 4B1.4(b)(3)(A) calling for a base offense
              level of 34 for a defendant who is classifiable as an armed
              career criminal and that as a result his base offense level
              should be 28 instead.

                    B. That the Appellant’s proper Criminal History
              Category should have been calculated to be a IV instead of a
              VI.

                                        ANALYSIS

              Third Circuit Local Appellate Rule 109.2(a) provides that “[w]here, upon

review of the district court record, trial counsel is persuaded that the appeal presents no

issue of even arguable merit, trial counsel may file a motion to withdraw and supporting

brief pursuant to Anders v. California, [386 U.S. 738 (1967)].” When considering an

Anders motion, we must “decide whether the case is wholly frivolous.” United States v.

Youla, 241 F.3d 296, 299 (3d Cir. 2001). Our inquiry is “twofold: (1) whether counsel

adequately fulfilled [Rule 109.2(a)]’s requirements; and (2) whether an independent

review of the record presents any nonfrivolous issues.” Id. at 300.

              “The duties of counsel when preparing an Anders brief are (1) to satisfy the

court that counsel has thoroughly examined the record in search of appealable issues, and

(2) to explain why the issues are frivolous.” Id. “Counsel need not raise and reject every

possible claim . . . [h]owever, at a minimum, he or she must” conscientiously examine

the record for appellate issues. Id.



                                              3
              Here, counsel’s brief is inadequate. The brief deals only with the two issues

that Martinez himself apparently advanced as nonfrivolous. Although the brief is

convincing that those issues are frivolous, there is no indication from the brief that

counsel examined the record himself for other appellate issues. Counsel’s motion states

that he reviewed “the entire record for any other possible issues, and . . . found no issues

of merit.” But, under Youla, counsel’s brief must demonstrate that he undertook such a

review. Id. at 299 (“Presenting what amounts to a no-merit letter devoid of analysis will

not suffice.”); see also United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000) (“[T]he

brief at minimum must assure us that [counsel] has made a sufficiently thorough

evaluation of the record to conclude that no further discussion of other areas of the case is

necessary.” (quoting United States v. Tabb, 125 F.3d 583, 585 (7th Cir. 1997)).

Counsel’s brief does not do so.

              Nonetheless, we dismiss Martinez’s appeal because it is patently frivolous.

See Youla, 241 F.3d at 300 (stating that we should accept inadequate Anders briefs “in

those cases in which frivolousness is patent”). Our own review of the transcripts of the

plea colloquy and sentencing proceedings in the district court reveals no appealable

issues. The district court scrupulously followed the requirements of Federal Rule of

Criminal Procedure 11 by informing Martinez of all of his rights, establishing that the

plea was voluntary, and establishing a factual basis for the plea. Similarly, the court’s

sentencing decision adhered to the Sentencing Guidelines. The court properly applied



                                              4
U.S.S.G. § 4B1.4 because Martinez committed his six prior drug offenses “on different

occasions.” See § 4B1.4 cmt. n.1 (instructing courts to apply the enhancement when

18 U.S.C. § 924(e) applies). The court also properly determined that, under

§ 4B1.4(c)(2), Martinez’s criminal history category was VI because he “possessed the

firearm in connection with a crime of violence.” According to the PSR, Martinez used

the gun to rob a man. As the district court only needed to find that fact by a

preponderance of the evidence, United States v. Mack, 229 F.3d 226, 232-35 (3d Cir.

2000), and we would apply a plain error standard of review because Martinez did not

object to the criminal history category in the district court, United States v. Mustafa, 238

F.3d 485, 492 (3d Cir. 2001), an appeal on this issue would be frivolous.1

                                      CONCLUSION

       For the reasons stated above, Martinez’s appeal will be DISMISSED pursuant to

Third Circuit Local Appellate Rule 109.2(a) and the motion to withdraw will be

GRANTED.




       1
        We note that the criminal history category of VI was also warranted because,
given his six prior convictions and the fact that he committed the instant offense while on
probation, M artinez’s total criminal history score was twenty. Under the sentencing table
set forth in Chapter 5, Part A of the Sentencing Guidelines, any offender with more than
thirteen criminal history points falls into criminal history category VI.

                                              1
