                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-16-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3519




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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                               Nos. 05-3519 & 06-1261

                          UNITED STATES OF AMERICA

                                           v.

                                 RAFAEL ROBLES,
                                          Appellant No. 05-3519

                     Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                 (No. 02-cr-00552-4)
                        District Court: Hon. Cynthia M. Rufe
                _____________________________________________

                          UNITED STATES OF AMERICA

                                           v.

                                 CARLOS L. SOTO,
                                           Appellant No. 06-1261

                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                  (No. 03-cr-00173-7)
                        District Court: Hon. R. Barclay Surrick

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 February 26, 2007

                   Before: McKEE and ALDISERT, Circuit Judges
                            and RESTANI* , Chief Judge



      *
        The Honorable Jane A. Restani, Chief Judge of the United States Court of
International Trade, sitting by designation.
                              (Opinion filed: January 16, 2008)

                                          OPINION

McKEE, Circuit Judge.

       Rafael Robles and Carlos Soto appeal the sentences that were imposed following

their guilty pleas for violating federal drug laws. For the reasons that follow, we will

affirm both sentences. Inasmuch as we write primarily for the parties, who are familiar

with their cases, we need not set forth the factual background or procedural histories

except insofar as may be helpful to our brief discussion.

                                        I. Discussion

       Robles’s and Soto’s appeals are related to a third case, United States v. Castro (No.

06-2596), in that all three arise out of the same drug conspiracy. Since Edward Castro’s

appeal raises an issue pertaining to the cocaine guidelines, we will hold his appeal CAV

pending the Supreme Court’s decision in Kimbrough v. United States, 127 S. Ct. 2933

(2007). However, since that issue is not involved in the appeal of either Robles or Soto,

we now decide those appeals. We address each case in turn.

       A. Rafael Robles

       In his plea agreement, Robles waived “all rights to appeal or collaterally attack

[his] conviction, sentence, or any other matter relating to this prosecution.” Robles now

argues that the district court erred in denying his motion to withdraw his guilty plea

because: (1) the district judge stated during his guilty plea colloquy that he faced a

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statutorily prescribed minimum term of imprisonment of ten years when, in fact, he faced

a statutory minimum of twenty-five years; (2) the district judge failed to ensure that the

plea agreement was entered into knowingly and voluntarily; and (3) his trial counsel

rendered ineffective assistance in connection to the plea agreement. The government

contends the appeal should be dismissed for lack of jurisdiction in light of the waiver of

the right to appeal contained in Robles’s plea agreement. We agree.

       Waiver of the right to appeal contained in a guilty plea deprives us of jurisdiction

over an appeal, so long as it is entered into knowingly and voluntarily and does not work

a miscarriage of justice. See United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001).

Here, Robles does not challenge the validity of the waiver in his plea agreement. Rather,

he asserts error on the basis of the district court’s denial of his motion to withdraw his

guilty plea. Significantly, among the reasons Robles posits in arguing that the district

court should have permitted him to withdraw his guilty plea is his claim that he did not

enter into the plea agreement knowingly and voluntarily. He does not, however, argue that

he did not understand that he was waiving his right to appeal, nor does the record support

that claim.

       That omission deprives us of jurisdiction to review the district court’s denial of his

motion to withdraw the guilty plea. Id. However, even if we assume, arguendo, that

Robles’s contention that he did not enter into the plea agreement knowingly and

voluntarily is sufficient to allow us to review the merits of his appeal, we would still



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affirm the district court’s order denying his petition to withdraw his plea.

       “The constitutional requirement that a guilty plea be ‘knowing and voluntary’ is

embodied in Federal Rule of Criminal Procedure 11.” United States v. Schweitzer, 454

F.3d 197, 202 (3d Cir. 2006) (citing Boykin v. Alabama, 395 U.S. 238, 242-44 (1969)).

Pursuant to Rule 11, the district judge must “address the defendant personally in open

court” and determine that he/she understands the panoply of rights attendant to trial and

the ramifications of forfeiting those rights by pleading guilty. Fed. R. Crim. P. 11(b)(1).

The record in this case demonstrates that the district judge did that.

       In particular, the district judge asked Robles if he understood that absent the plea

of guilty he could appeal a guilty verdict or his sentence, that he could have a lawyer

represent him during his appeal, and that by pleading guilty under the plea agreement he

forfeited his right to appeal. Robles stated that he understood the effect of waiving all of

the rights outlined in Rule 11, including his right to appeal. Moreover, even the most

imaginative minds would be hard pressed to fashion any of Robles’s arguments into a

claim that his plea agreement worked a miscarriage of justice. Thus, we must enforce

waiver and dismiss Robles’s appeal for lack of jurisdiction.

       However, we additionally note that Robles’s contention that he did not understand

that pleading guilty carried a mandatory minimum sentence of twenty-five years lacks

merit. Robles signed a plea agreement explaining that the charges against him carried a

mandatory minimum term of imprisonment totaling twenty-five years. The government



                                              4
also informed Robles during the change of plea hearing that the charges he was pleading

guilty to required him to serve at least twenty-five years in prison. Furthermore, during

the change of plea hearing the court asked Robles whether he understood the extent of the

penalties the government had explained, and he responded in the affirmative.

       B. Carlos Soto

       Carlos Soto’s original sentence was changed after we remanded for re-sentencing

pursuant to United States v. Booker, 543 U.S. 220 (2005). On remand, Robles was re-

sentenced to 240-months imprisonment, which is more than four years less than his

original sentence. See United States v. Soto, No. 03-cr-173, 2005 WL 28117788 (3d Cir.

Oct. 27, 2005)

       Although Soto has now appealed that sentence, his lawyer has filed a brief

pursuant to Anders v. California, 386 U.S. 738, 744 (1967), and served a copy of that

brief on his client. In the brief, counsel contends that there is no basis for an appeal and

seeks to withdraw from the case. Anders states: “[I]f 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.” Id. at 744. Counsel is nevertheless required to submit a

“brief referring to anything in the record that might arguably support the appeal” with the

motion to withdraw. Id. Moreover, we have identified two obligations that appellate

counsel must satisfy under Anders: (1) he/she must “satisfy the court that he or she has

thoroughly scoured the record in search of appealable issues” and (2) he/she “must



                                              5
explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d

Cir. 2000) (citing United States v. Tabb, 125 F.3d 583, 585, 586 (7th Cir. 1997)). If we

agree with counsel’s conclusion that the appeal lacks merit, “we will grant . . . counsel’s

Anders motion, and dispose of the appeal without appointing new counsel.” Third Circuit

L.A.R. 109.2(a). However, if we conclude that there is “arguable merit to the appeal,

[we] will discharge current counsel, appoint substitute counsel, restore the case to the

calendar, and order supplemental briefing.” Id.

       Here, appellate counsel’s Anders brief states that he has conducted an exhaustive

review of the record, and has identified as the only arguably appealable issue whether the

district court complied with Booker when resentencing Soto. Counsel argues that Soto’s

appeal lacks merit because, on remand, the district court acknowledged that Soto’s

original sentence of 292 months was imposed only because the guidelines were

mandatory. Counsel points to the district judge’s admission that, had he been permitted to

do so, he would have sentenced Soto below the mandatory range. Counsel explains that

the district court’s sentence, which is outside the guidelines range, evidences the court’s

understanding that the guidelines are no longer mandatory. Additionally, counsel

contends that the district court consulted the relevant sentencing factors when imposing

sentence. Accordingly, we conclude that counsel has satisfied the procedural

requirements necessary to submit a successful Anders brief. Next, we must determine

whether we agree with counsel’s contention that no arguably appealable issues exist.



                                              6
       Since Booker, our review of sentencing decisions has been for “unreasonableness.”

Booker, 543 U.S. at 261. “To determine if the court acted reasonably in imposing the

resulting sentence, we must first be satisfied the court exercised its discretion by

considering the relevant factors.” United States v. Cooper, 437 F3d 324, 329 (3d. Cir.

2006). Beyond that, “we must also ascertain whether those factors were reasonably

applied to the circumstances of the case.” Id.

       Here, we are satisfied that the district court considered the relevant sentencing

factors and reasonably applied them. When resentencing Soto, the district judge noted

that the 240-month term of imprisonment: (1) “serves the ends of justice”; (2) is

significant, but warranted because Soto “earned it”; and (3) is based upon Soto’s criminal

history and the way he has “conducted his life.” Furthermore, we find that those factors

were reasonably applied given Soto’s guilty plea to the multiple drug charges.

       Based on the foregoing, we agree with appellate counsel’s Anders brief that Soto’s

appeal lacks merit. Therefore, we will affirm Soto’s sentence and permit appellate

counsel’s motion to withdraw.

                                             II.

       For the reasons stated above, we will affirm the District Courts.




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