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


4-6-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2361




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"USA v. Berberena" (2004). 2004 Decisions. Paper 869.
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                                                               NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       No. 03-2361

                            UNITED STATES OF AMERICA

                                               v.

                               JONATHAN BERBERENA,

                                          Appellant
                                  ___________________

                    On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                   District Judge: The Honorable Michael M. Baylson
                                   (D.C. No. 02-cr-587)
                              _________________________
                    Submitted pursuant to Third Circuit LAR 34.1(a)
                                    on March 23, 2004

               Before: FUENTES, SMITH and GIBSON*, Circuit Judges

                                   (Filed: April 5, 2004)

                                 ____________________

                               OPINION OF THE COURT
                                _____________________

SMITH, Circuit Judge.

       Jonathan Berberena, pursuant to a written plea agreement, pled guilty to all five

counts set forth in an indictment filed against him: conspiracy to distribute and possession



* The Honorable John R. Gibson, Senior Circuit Judge for the United States Court of
Appeals for Eighth Circuit, sitting by designation.
with intent to distribute cocaine base, possession with intent to distribute cocaine and

possession with intent to distribute cocaine and cocaine base within one thousand feet of

a school. After reading his presentence report, but prior to being sentenced, Berberena

moved to withdraw his guilty plea. That motion was denied. He was then sentenced to

384 months imprisonment, five years of supervised release and a special assessment of

$500.1

         After reviewing the record and caselaw, Berberena’s counsel now moves to

withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). In Anders, the Supreme

Court stated that the “constitutional requirement of substantial equality and fair process”

means that appellate counsel must act as an advocate for the defendant. 386 U.S. at 744.

Thus, counsel’s

         role as advocate requires that he support his client’s appeal to the best of his
         ability. Of course, if counsel finds his case to be wholly frivolous, after a
         conscientious examination of it, he should so advise the court and request
         permission to withdraw. That request must, however, be accompanied by a
         brief referring to anything in the record that might arguably support the
         appeal.

Id. As we explained in United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001), the

Anders brief must demonstrate that counsel has “thoroughly examined the record in

search of appealable issues,” and it must “explain why the issues are frivolous.”

Accordingly, our inquiry is twofold: (1) whether counsel adequately fulfilled the



1
 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                                2
requirements of Anders; and (2) “whether an independent review of the record presents

any nonfrivolous issues.” Id. (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir.

2000)); see also Anders, 386 U.S. at 744 (explaining that the court must proceed, “after a

full examination of all the proceedings, to decide whether the case is wholly frivolous”).

If review fails to reveal any nonfrivolous issues, the court “may grant counsel’s request to

withdraw and dismiss the appeal.” Anders, 386 U.S. at 744.

       After considering counsel’s Anders brief, we are satisfied that she thoroughly

examined the record for issues of arguable merit and fulfilled the requirements of Anders.

Counsel correctly observed that Berberena’s plea of guilty limited the issues he is entitled

to challenge on appeal to the District Court’s jurisdiction, the validity of the guilty plea,

and the legality of the sentence. United States v. Broce, 488 U.S. 563, 570-75 (1989). As

Berberena’s counsel noted, there is no basis for disputing the District Court’s jurisdiction.

       With respect to the validity of Berberena’s guilty plea, counsel fully satisfied her

obligation under Anders. She considered not only whether the guilty plea proceeding

complied with the requirements of Boykin v. Alabama, 395 U.S. 238 (1969), but also

addressed each of the requirements of Federal Rule of Criminal Procedure 11.

Berberena’s counsel also properly addressed his motion to withdraw his plea upon

learning of the sentence that would result from his presentence report, and noted that the

District Court properly denied that motion in light of United States v. Harris, 44 F.3d

1206, 1210 (3d Cir. 1995).



                                               3
       Berberena’s sentencing was also conscientiously examined by his appellate

counsel. We agree that the District Court did not err in calculating the criminal history

score. Our review of the record confirms that the District Court had sufficient evidence

to support its computation of Berberena’s criminal history score.

       Counsel advised Berberena of his intention to file an Anders brief and that

Berberena was entitled to file a pro se brief.2 Berberena filed a brief pro se which

conformed to the assessment of his case made by his attorney in her Anders brief.3

       In sum, we agree with counsel’s assessment of Berberena’s appeal. Our own

independent review of the record fails to reveal any nonfrivolous issues for appeal.

       Accordingly, we will grant counsel’s motion to withdraw and affirm the judgment



2
 Counsel’s notice to Berberena is consistent with Local Appellate Rule 109.2(a) of the
Third Circuit which provides:

       Where, 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), which shall be served upon the appellant and the United States. The
       United States shall file a brief in response. Appellant may also file a brief in
       response pro se. After all the briefs have been filed, the clerk will refer the case to
       a merits panel. If the panel agrees that the appeal is without merit, it will grant
       trial counsel’s Anders motion, and dispose of the appeal without appointing new
       counsel. If the panel finds arguable merit to the appeal, it will discharge counsel,
       appoint substitute counsel, restore the case to the calendar, and order supplemental
       briefing.
3
 We note that Berberena claims ineffective assistance of counsel in his pro se brief, but as
we noted in United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003), “[i]t has long
been the practice of this court to defer the issue of ineffectiveness of trial counsel to a
collateral attack.”

                                              4
of the District Court entered on May 1, 2003. We certify that the issues presented in the

appeal lack legal merit and thus do not require the filing of a petition for writ of certiorari

with the Supreme Court. 3d Cir. LAR 109.2(b).




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