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


9-30-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3048




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation
"USA v. Gonzalez" (2004). 2004 Decisions. Paper 306.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/306


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 03-3048


                          UNITED STATES OF AMERICA

                                            v.

                                RODNEY GONZALEZ,

                                                 Appellant


                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                       (D.C. Criminal Action No. 02-cr-00062-1)
                      District Judge: Honorable Sylvia H. Rambo


                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 17, 2004

                Before: ALITO, AM BRO and FISHER, Circuit Judges

                              (Filed : September 30, 2004)




                                       OPINION




AM BRO, Circuit Judge

      Rodney Gonzalez pled guilty to two counts of interstate travel to facilitate the
distribution of crack cocaine, in violation of 18 U.S.C. § 1952(a)(3). Though Gonzalez

timely appealed his conviction and sentence, his appellate counsel has filed an Anders

brief stating that no nonfrivolous issues exist for appeal. He has also moved to withdraw

as Gonzalez’s counsel. After reviewing the record in this case, we dismiss the appeal and

grant counsel’s motion.

                            Factual and Procedural History

       In October 2001, the Drug Enforcement Administration, working in conjunction

with the Pennsylvania State Police, began investigating drug trafficking activities in

Cumberland County, Pennsylvania. Gonzalez was known to the authorities as a dealer of

crack cocaine.

       On February 5, 2002, the Pennsylvania State Police stopped a car operated by

Gonzalez and containing one passenger, Damien Langlaise, because its windows were

visibly tinted beyond the legal limit. When the police observed evidence of drug use, they

conducted a pat-down search, which revealed approximately one ounce of crack cocaine

hidden in Langlaise’s underwear. Both men were arrested. Gonzalez later stated that he

had given Langlaise the drugs when the police stopped them.

       The arrest led to an extensive investigation of Gonzalez, which revealed that

several individuals were distributing drugs for him in Carlisle, Pennsylvania. Gonzalez

admitted in a statement to investigators that he was involved in the distribution of crack

cocaine, though he disputed the alleged extent of his participation. He stated that he had



                                             2
traveled from New York to Carlisle four or five times, each time with approximately one-

half ounce of crack cocaine.

       In 2002 a grand jury in Harrisburg, Pennsylvania returned an indictment charging

Gonzalez with various drug trafficking offenses, including unlawful distribution and

possession with intent to distribute crack cocaine, as well as conspiracy to distribute and

possess with intent to distribute crack cocaine. Pursuant to a plea bargain, Gonzalez was

permitted, in lieu of proceeding to trial, to plead guilty to two counts of interstate travel in

order to facilitate the distribution of crack cocaine. On October 15, 2002, Gonzalez pled

guilty to the reduced charges. On July 1, 2003, he was sentenced to 60 months

imprisonment on each count, to be served consecutively, for a total of 120 months

imprisonment.

       Gonzalez appealed his sentence pro se, and counsel was appointed to represent

him. Counsel has filed an Anders brief asserting that the appeal raises no nonfrivolous

issues, and he seeks to withdraw as counsel.

                                          Discussion

       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).” In reviewing an Anders motion,

we must consider both “(1) whether counsel adequately fulfilled [Rule 109.2(a)’s]



                                               3
requirements; and (2) whether an independent review of the record presents any

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

       Our first task, then, is to assess whether counsel satisfied his duties under Rule

109.2(a) by thoroughly examining the record in search of appealable issues and

explaining why any potential issues are frivolous. Id. While counsel “need not raise and

reject every possible claim,” he must conscientiously examine the record. Id.

       Our review shows that counsel has thoroughly considered all plausible bases for

appeal, including issues that Gonzalez has waived by virtue of his guilty plea. For

example, counsel discusses at length the legitimacy of the stop of Gonzalez’s vehicle.

We are satisfied that the stop was proper. But even if it were not, Gonzalez could not

now challenge it. He was advised that by pleading guilty he would give up his right to

file any pre-trial motions, and he has not challenged the adequacy of the guilty plea

colloquy that led to the entry of his plea. Similarly, while Gonzalez now suggests that he

might have received a lesser sentence by proceeding to trial, the transcript of the plea

colloquy reveals that he was fully aware of the Government’s case against him, as well as

the legal consequences of a guilty plea.

       Because counsel has submitted an adequate Anders brief, “we confine our scrutiny

to those portions of the record identified by [that brief] . . . [and] those issues raised in

Appellant’s pro se brief.” Id. at 301. Gonzales submitted a brief in response to counsel’s

Anders brief. In it he raised only one claim: ineffective assistance of counsel. We do not



                                                4
consider ineffective assistance of counsel claims on direct review. United States v.

Thornton, 327 F.3d 268, 271–72 (3d Cir. 2003).

       Thus we conclude, upon “a full examination of all the proceedings,” Anders, 386

U.S. at 744, “that the attorney has provided the client with a diligent and thorough search

of the record for any arguable claim.” McCoy v. Court of Appeals of Wis., 486 U.S. 429,

442 (1988). We agree with counsel that the appeal is frivolous, and we therefore affirm

the judgment on the merits and grant counsel’s motion to withdraw.




                                             5
