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


1-14-2008

USA v. Esquivel-Corona
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5258




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Recommended Citation
"USA v. Esquivel-Corona" (2008). 2008 Decisions. Paper 1755.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1755


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                                                     NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 05-5258



                UNITED STATES OF AMERICA

                                v.

                GABRIELE ESQUIVEL-CORONA
                         a/k/a JOSE

                                           Gabriele Esquivel-Corona,
                                                                 Appellant


          On Appeal from the United States District Court
                    for the District of New Jersey
                  D.C. Criminal No. 05-cr-00259-3
           District Judge: Honorable Jerome B. Simandle


          Submitted Pursuant to Third Circuit LAR 34.1(a)
                        November 5, 2007

Before: SCIRICA, Chief Judge, AMBRO and JORDAN, Circuit Judges.

                     (Filed: January 14, 2008)



                   OPINION OF THE COURT
SCIRICA, Chief Judge.

       Gabriele Esquivel-Corona appeals his criminal sentence and conviction. We
               1
will affirm.

       Esquivel-Corona pled guilty to a two-count indictment charging knowing

and intended conspiracy to distribute and possession with intent to distribute five hundred

or more grams of cocaine under 21 U.S.C. § 841(a)(1) and (b)(1)(B) and to possession of

a firearm during and in relation to a drug trafficking offense under 18 U.S.C. §

924(c)(1)(A). Refusing the Government’s proposed plea agreement, Esquivel-Corona

chose instead to enter an open plea of guilty.

       At sentencing, defense counsel objected to a two-level guideline enhancement

based on the inclusion of certain drugs in the calculation of the offense level. The District

Court agreed, reducing the offense level by two. Defense counsel requested a sentence of

117 months at the bottom of the guideline range. The Government requested a sentence

of 131 months at the top of the range. The District Court imposed a sentence of 120

months.

       Our review reveals defense counsel thoroughly considered all plausible bases for

appeal and set forth in the Anders brief why such issues were legally frivolous. Defense

counsel examined at length the guilty plea colloquy transcript, the sentencing transcript,



   1
    Esquivel-Corona’s attorney filed a brief under Anders v. California, 386 U.S. 738
(1967), and a motion to withdraw as court-appointed counsel. Esquivel-Corona filed a
pro se brief with this Court on November 1, 2006.

                                             2
the Presentence Investigative Reports, and other documents. Defense counsel discussed

with Esquivel-Corona the proposed plea agreement, as well as his right to a jury trial, the

risks associated with trial and pleading open, and the advisory nature of the sentencing

guidelines. The guilty plea colloquy reveals that Esquivel-Corona entered his plea

knowingly, intelligently, and voluntarily, and specifically understood the consequences of

an open plea of guilty. Based on our own examination of the record, we conclude that

counsel satisfied the requirements of Third Circuit Local Appellate Rule 109.2(a) under

Anders.

       As noted, Esquivel-Corona also submitted a brief. He raised three issues: 1)

violation of the Confrontation Clause in relying on a co-conspirator’s out-of-court

admission, 2) improper application of 18 U.S.C. § 924(c) because he never possessed or

carried the firearms used in the drug transaction, and 3) a defective plea (unknowing and

involuntary) because he did not personally carry or use firearms during the drug

transaction.

       Esquivel-Corona cites Crawford v. Washington, 541 U.S. 36 (2004), to support his

contention that the District Court violated his Confrontation Clause rights in relying on

the out-of-court admissions of a co-conspirator during sentencing. But Crawford

involved only trial testimony and does not extend to sentencing hearings. A trial judge

may consider hearsay testimony at a sentencing hearing. Furthermore, Esquivel-Corona

pled guilty. The District Court relied on defendant’s admissions, not those of his co-

conspirator.

                                             3
      Esquivel-Corona also asserts the inapplicability of § 924(c) because he never

carried or possessed the weapons during the drug transaction. But during his plea,

Esqiuvel-Corona agreed it was foreseeable that someone would bring a gun to the

transaction given the quantity of money and drugs involved and agreed firearms were

present during the transaction. Although Esquivel-Corona may not have personally

handled the guns, a conviction under § 924(c) was proper where firearms were present

and were reasonably foreseeable. Moreover, the presence of the firearms was attributable

to Esquivel-Corona as an act completed by a co-conspirator in the furtherance of the

conspiracy. Pinkerton v. United States, 328 U.S. 640 (1946).

      Turning to the third issue, his attorney, as well as the court, explained the rights

and risks of pleading open to the court, to which Esquivel-Corona repeatedly replied he

understood. The court asked Esquivel-Corona if guns were present at the drug

transaction. He agreed this was so. The court asked if he agreed it was reasonably

foreseeable guns would be present at the transaction given the quantity of drugs involved.

Again, Esquivel-Corona assented. His plea was knowing and voluntary.

      Accordingly, there are no non-frivolous arguments raised in this appeal.

      For the foregoing reasons, we will affirm the judgment and sentence of the District

Court. Defense counsel’s motion to withdraw is granted.




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