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


1-24-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3075




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                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                      No. 06-3075
                                    _______________

                           UNITED STATES OF AMERICA

                                             v.

                        JOSE FRANCISCO GONZALEZ-VILLA
                           a/k/a FRANCISCO GONZALEZ,

                                                Appellant
                                    _______________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                                (D.C. No. 03-cr-00186-5)
                       District Judge: Honorable Joseph E. Irenas
                                    _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 8, 2008

                   Before: FUENTES and JORDAN, Circuit Judges
                            and DITTER*, District Judge.

                                 Filed: January 24, 2008
                                   _______________

                               OPINION OF THE COURT
                                   _______________

_______________
   *Honorable J. William Ditter, Jr., United States District Court Judge for the Eastern
District of Pennsylvania, sitting by designation.
JORDAN, Circuit Judge.

       This criminal appeal follows a guilty plea by Jose Francisco Gonzalez-Villa

(“Gonzalez”) to conspiracy to distribute and to possess with intent to distribute more than

five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.

Pursuant to his plea agreement with the government, Gonzalez faced a stipulated advisory

sentencing range of 135 to 168 months in jail under the United States Sentencing

Guidelines, before consideration of any § 5K1.1 motion. He was sentenced to 87 months

imprisonment, five years supervised release, and the payment of the standard special

assessment of $100. Gonzalez’s attorney has filed a brief as permitted by Anders v.

California, 386 U.S. 738 (1967), stating that there are no non-frivolous issues to appeal

and seeking leave to withdraw from his representation of Gonzalez. This Court notified

Gonzalez of his right to submit a pro se brief in support of his appeal, but he did not do

so, although the District Court docket reveals a list of issues Gonzalez wants to have

considered on appeal.1 Having considered those reasons as set forth below, we will

affirm the judgment and sentencing order and grant counsel’s request to withdraw.2



  1
   In addition to the notice of appeal filed by Gonzalez’s counsel, Gonzalez filed a notice
of appeal on his own, dated June 11, 2006 (App. at A-2) and docketed in the District
Court on June 19, 2006 (App. at A-30). That document states that a “copy of issues
complained of on appeal are forwarded herewith.” (Id.) Although the appendix in this
case does not contain that list, it is set forth as an attachment to Docket Item #137 in the
District Court.
  2
   The District Court had jurisdiction in this criminal matter pursuant to 18 U.S.C.
§ 3231. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                             2
       Third Circuit Local Appellate Rule 109.2(a) provides, “[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 [Anders]

brief.” In considering counsel’s Anders brief, we examine: (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). To fulfill the requirements of Rule 109.2(a), the brief must “satisfy the

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

... explain why the issues are frivolous.” Id. (citing United States v. Marvin, 211 F.3d

778, 780 (3d Cir. 2000)). At a minimum, the brief must assure us that counsel has made a

conscientious examination of the case. Id.

       We conclude here that counsel’s brief adequately demonstrates that counsel has

thoroughly examined the record in search of appealable issues and has adequately

explained why the issues are frivolous. We also conclude, after our own independent

analysis of the record, that this appeal presents no non-frivolous issues. Gonzalez was a

member of a conspiracy involved in the transportation of significant quantities of cocaine

from Arizona to the greater Philadelphia region. He was, by his own admission, involved

in the distribution of the cocaine. During the plea colloquy, the District Court thoroughly

established that Gonzalez’s decision to plead guilty was knowing and voluntary.

       Gonzalez agreed to waive his appellate rights as part of his deal with the

government. (App. at A-38.) Nevertheless, his pro se notice of appeal has appended to it

                                              3
issues that he wants to have addressed on appeal. The first three issues challenge the

District Court’s reliance on the presentence report, the “harsh” sentence imposed, and the

Court’s jurisdiction. We agree with Gonzalez’s counsel that these issues must be

characterized as frivolous.

       Also frivolous are the remaining issues that Gonzalez lists, all of which are

focused on what he terms the ineffectiveness of his defense attorney. Gonzalez

complains that counsel failed to timely file a notice of appeal. That is simply inaccurate.

Counsel filed a notice of appeal that was docketed approximately a week before

Gonzalez’s pro se notice of appeal was filed. Gonzalez also complains that counsel

“failed to research the facts of law [sic] and the jurisdiction of the court over Appellant ...

[,]” that he “failed to object to improper statements made within [the presentence report,]”

and that he “failed to conduct a back ground [sic] check on the Appellant’s mental health

history.” It is noteworthy that, as of the time of the plea, when asked under oath whether

he was satisfied with the representation provided by his counsel, Gonzalez answered

“Very much, yes.” (App. at A-64.) More to the point, however, is that any claim as to

ineffective assistance of counsel should typically be made in the first instance in the

district court pursuant to 28 U.S.C. § 2255. See United States v. DeRewal, 10 F.3d 100,

103 (3d Cir. 1993) (“[I]t is appropriate to raise a claim of ineffective assistance under

Section 2255, rather than on direct appeal.”). In this case, it appears that, as part of his




                                               4
plea agreement, Gonzalez waived his rights pursuant to Section 2255. (App. at A-38.)3

He may not complain on direct appeal about an issue reserved for collateral attack but

which he has waived.

       In short, we are satisfied that defense counsel has made a conscientious

examination of the case and has adequately explained that there are no non-frivolous

issues to be considered on appeal. After our own independent analysis of the record, we

agree that this appeal presents no non-frivolous issues and will, therefore, affirm the

judgment of conviction and the sentence, and will grant counsel’s request to withdraw.




  3
    In addition to the express waiver in the plea agreement, the following exchange took
place during the plea colloquy:
        Q: And do you, also, understand that what I’ll call under usual circumstance and
after appeals were over, you would have a right to attack your sentence in what they call a
habeas corpus post-conviction relief. In the Federal Court we call it Section 2255.
        A: Yes.
        Q: And you understand that you are also waiving those rights?
        A: Yes. What else could I do?
        Q: Again, well, you don’t have to. I mean you agreed to do that, didn’t you?
        A: Yes.
        Q: And nobody forced you to do that?
        A: No. I would have told you.
(See App. at A-81 through A-82.)
                                             5
