                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-26-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1767




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"USA v. Made" (2007). 2007 Decisions. Paper 1206.
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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                  Case No.: 06-1767

                          UNITED STATES OF AMERICA

                                             v.

                        MADE MANUEL, a/k/a/ Wade Manuel,

                                  MANUEL MADE,

                                             Appellant
                               ____________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                             District Court No.: 02-cr-00169
                   District Judge: The Honorable William G. Bassler
                                ____________________
                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                      April 13, 2007

                     Before: SMITH and COWEN, Circuit Judges,
                              and YOHN, District Judge*

                               (Filed: April 26, 2007)
                               ____________________

                                     OPINION
                               ____________________


_____________________

      *The Honorable William H. Yohn Jr., Senior District Judge for the Eastern District
of Pennsylvania, sitting by designation.
YOHN, District Judge.

       Manuel Made appeals his sentence of 60 months imposed after he pleaded guilty to

one count of conspiracy to distribute and possess with intent to distribute more than 100

grams of heroin in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B) and 21 U.S.C. § 846.

Made’s counsel has filed a motion to withdraw as counsel and a supporting brief under

Anders v. California, 386 U.S. 738 (1967). Made was notified of his right to submit a pro

se brief in support of his appeal, but has not done so. For the following reasons, we will

affirm the District Court’s judgment of sentence and grant counsel’s motion to withdraw.

       On July 7, 2003, pursuant to a written agreement with the government, Made

pleaded guilty to one count of conspiracy to distribute and possess with intent to

distribute more than 100 grams of heroin. Made’s presentence report noted that under §

841(b)(1)(B), the conspiracy count carried a mandatory minimum term of 5 years and a

maximum term of 40 years. Made’s Offense Level of 27 with a Criminal History

Category of I brought him within a Sentencing Guidelines range of 70 to 87 months. At

the sentencing hearing on January 14, 2004, the District Court imposed a sentence of 70

months. Made appealed his sentence. The Third Circuit remanded for resentencing in

accordance with the Supreme Court’s intervening decision in United States v. Booker,

543 U.S. 220 (2005).

       At Made’s resentencing hearing on February 28, 2006, the District Court reduced

his sentence to 60 months. The government did not file a motion under 18 U.S.C. §



                                             2
3553(e) based on his substantial assistance to authorities and defendant’s counsel agreed

that Made had no “safety valve” eligibility under 18 U.S.C. § 3553(f). (App. 15.)

Emphasizing the “flexibility” allowed under 18 U.S.C. § 3553(a) (App. 23), the District

Court continued:

       I can’t imagine that Mr. Made has not realized the seriousness of the offense
       and that the amount of time he’s spending in the federal facility along with the
       Passaic County Jail does not afford adequate deterrence to any future conduct.
       I’m satisfied that he doesn’t need another ten months to protect the public from
       further crimes, and I don’t think he needs another ten months to reflect [on] the
       seriousness of the offense.

(Id. at 23.) The District Court therefore determined that the mandatory minimum was

“sufficient but not greater than necessary to reflect the seriousness of the offense, . . . to

promote respect for the law and provide just punishment for the offense.” (Id. at 22.)

Made filed a timely notice of appeal.1

       In Anders v. California, 386 U.S. 738 (1967), the Supreme Court held that if

court-appointed counsel “finds [an appeal] to be wholly frivolous, after a conscientious

examination” of the record, he should “so advise the court and request permission to

withdraw.” Id. at 744. Third Circuit Local Appellate Rule 109.2(a) (“L.A.R. 109.2(a)”),

enacted in response to the Anders guidelines, permits counsel to file a motion to withdraw

and supporting Anders brief if, upon review of the record, counsel “is persuaded that the

appeal presents no issue of even arguable merit.” Third Circuit L.A.R. 109.2(a). In an

1
 The District Court had jurisdiction under 18 U.S.C. § 3231. The Third Circuit has appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United States v. Cooper, 437
F.3d 324, 327-28 (3d Cir. 2006).

                                               3
Anders brief, counsel must “satisfy the court that he or she has thoroughly scoured the

record in search of appealable issues” and must also “explain . . . why the issues are

frivolous.” United States v. Marvin, 211 F.3d 778, 780-81 (3d Cir. 2000). The Third

Circuit evaluates counsel’s Anders brief to determine: “(1) whether counsel adequately

fulfilled the rule’s 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).

         In this case, we find that Made’s counsel has adequately fulfilled the requirements

of L.A.R. 109.2 by scrutinizing the record and determining the appeal to be frivolous.

Made’s counsel has a filed a 13-page Anders brief, which set forth the factual background

and procedural history of the case, and attached a 24-page appendix. Made’s counsel

identified one possible issue for appeal–whether Made’s 60-month sentence is

reasonable–and explained why this issue is frivolous.

         Additionally, an independent review of the record presents no non-frivolous issue.

Made might possibly challenge his sentence as unreasonable. However, the record

reveals the District Court considered the § 3553(a) factors, and the District Court, in fact,

imposed a sentence below the advisory guidelines range. (App. 19-24.) In addition,

Made’s sentence is reasonable under Booker because the District Court did not have the

discretion to sentence him to a term lower than the statutory minimum. See United States

v. Smith, 419 F.3d 521, 532 (6th Cir. 2005); United States v. Payton, 405 F.3d 1168, 1173



                                              4
(10th Cir. 2005); United States v. Raad, 406 F.3d 1322, 1323 n.1 (11th Cir. 2005)

(“[T]here is no merit to Raad’s claim that his sentence is unconstitutional in light of

United States v. Booker . . . [because] Raad was sentenced to the mandatory minimum

sentence based on the facts to which he pleaded guilty.”); United States v. Painter, 400

F.3d 1111, 1111 (8th Cir. 2005) (“[B]ecause the sentence is mandated by statute, it is free

of error under the Supreme Court’s recent decision in Booker. . . .”); United States v.

Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005). Further, this case did not involve two

bases that permit sentencing courts to impose a sentence below the statutory minimum: a

substantial assistance motion, 18 U.S.C. § 3553(e), or a defendant’s safety-valve

eligibility, 18 U.S.C. § 3553(f). (See App. 15.)

       Accordingly, we will affirm the February 28, 2006 judgment of the District Court

and we will grant counsel’s motion to withdraw.




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