                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-12-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3789




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                                              NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                           __________________________

                                     No. 01-3789
                             __________________________

                            UNITED STATES OF AMERICA

                                             v.

                                 ROBERT NEGRON,
                                      Appellant
                            ___________________________

                     On Appeal from the United States District Court
                               For the District of New Jersey
                                  (D.C. No. 01-cr-00278)
                      District Judge: Honorable Anne E. Thompson
                            ____________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                     July 3, 2003

         Before: SCIRICA, Chief Judge, BARRY and BECKER, Circuit Judges.

                               (Filed: September 11, 2003)
                             __________________________

                               OPINION OF THE COURT
                             __________________________

BECKER, Circuit Judge.

       Robert Negron has appealed from a judgment in a criminal case pursuant to his

bargained for plea of guilty to a charge of being a convicted felon in possession of a

firearm. 18 U.S.C. § (g)(1) and (2). Negron’s counsel, Philip J. Moran, has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), accompanied by a “Motion of

Request to be Relieved as Counsel,” and by a certification in support of the motion and of

the Anders brief, containing 36 paragraphs and concluding that there are no non-frivolous

issues for appeal. The brief refers to those portions of the record that might arguably

support an appeal and to the relevant law. The affidavit goes into detail as to every aspect

of the case, both the guilt and sentencing phase.

       As a general rule, the entry of a guilty plea constitutes a waiver of virtually all

possible claims for appellate relief except (1) a claim that the court lacked jurisdiction to

accept the plea; (2) a claim that the plea is invalid, according to applicable constitutional

and statutory standards; and (3) a claim that the sentence is illegal. See United States v.

Broce, 488 U.S. 563 (1989), Tollett v. Henderson, 411 U.S. 258 (1973). Since a guilty

plea constitutes an admission that the defendant committed the charged crimes, any claim

that is inconsistent with an admission of guilt generally is waived by the plea. See Broce,

488 U.S. at 570-75. The guilty plea colloquy conducted by the District Court was

extensive and in conformity with the requisites of Rule 11(c) of the Fed. R. Crim. P. We

need not describe the colloquy in detail. Suffice it to say that each of the requirements of

Rule 11(c) were amply covered, including establishing the factual basis for the plea.

Counsel’s certification, which sets forth his independent investigation, confirms the

factual basis. He also confirms his review of the presentence report and states that there

is no basis for objection to the calculation of the base offense level or application of the



                                              2
upward adjustment because the weapon was defaced. (A serial number was obliterated.)

He also represents that he finds no basis for additional downward adjustments (additional

to three levels for acceptance of responsibility).

       Inter alia, Mr. Moran’s certification states:

              31. Finally I have attempted to sit and look at the entirety of Robert
       Negron’s situation and my involvement. Mindful that I need argue every non-
       frivolous issue, even those that appear unsupported by current law or reasonable
       analogy.

              32. I have reviewed again Anders requirements, and have found
       solace in Justice Stewart’s decent [sic] and note the inherently “quixotic”
       nature of the undertaking. In truth, in this case, I believe requiring a brief to
       be the logical equivalent of ordering me to balance an egg on its edge.

              33. In addition to analyzing each segment or discernable part of this
       process, I have also attempted to take each Constitutional Amendment that
       might offer some solace to a defendant, and try to find an arguable basis
       there for appeal. I have considered the Second Amendment, I have
       considered the Fourth Amendment, I have considered the Fifth Amendment,
       I have considered the Sixth Amendment and I have considered the broadest
       implications of the Fourteenth Amendment but I have found nothing upon
       which Mr. Negron’s hat might rest.

              34. I have examined the underlying statute and compared its
       required elements to the facts offered at the time of the plea. I have
       examined the Statute in terms of its constitutional foundation. I am aware
       of the prior decision of this Court in United States v. Singletary, 268 F.3d
       196 (3d Cir. 2001). This is a controlling precedent. Notwithstanding that, I
       find an arguable discordance with my reading of the decision in United
       States v. Lopez, 514 U.S. 549 (1995), United States v. Morrison, 529 U.S.
       598 (2000), and Jones v. United States, 529 U.S. 848 (2000). However, my
       research shows that although at least 9 other Courts of Appeals have
       considered this issue, none has found this statute unconstitutional. I have
       nevertheless briefly, briefed this issue.

              35. I recognize that this Court wants a Brief. Heretofore, I believed

                                              3
       that any good attorney could surely always find something to argue about in
       every case. Here, however, I am defeated.

       Pursuant to these comments, Mr. Moran’s brief seeks to establish a basis for

constitutional challenge to § 922(g). His efforts fail, particularly in light of our decision

in United States v. Singletary, 268 F.3d 190 (3d Cir. 2001).

       In United States v. Marvin, 211 F.3d 778 (3d Cir. 2000) we reconfirmed the duty

of counsel filing Anders briefs to attempt to uncover the best arguments for his or her

client, and to explain the faults in possible arguments. We have examined the scant

record in this case, but find nothing that would require counsel to do more than he has

already. He fairly represents that the Rule 11 colloquy passes muster. The sentence was

not flawed. The statute of conviction is constitutional. The case is essentially

straightforward and there do not appear to be any other issues that might be the subject of

possible appeal. Accordingly, the judgment of the District Court will be affirmed. We

deny Mr. Negron’s motion for the appointment of new counsel. We grant Mr. Moran’s

motion to withdraw.1




  1
    While Mr. Moran was dilatory in fulfilling his Anders obligations, and it took some
effort by the Court to get him to complete them, he ultimately did so. Mr. Moran’s
dilatoriness does not affect the outcome of the case. We also note our view that, because
the issues presented in the appeal lack legal merit, they do not require the filing of a
petition for writ of certiorari with the Supreme Court. 3d Cir. LAR 109.2(b)(2000).

                                              4
    /s/ Edward R. Becker
    Circuit Judge




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