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


12-9-2003

USA v. Arroyo-Cruz
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2268




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 03-2268


                          UNITED STATES OF AMERICA

                                           v.

                           PRUDENCIO ARROYO-CRUZ,
                                          Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF NEW JERSEY
                             D.C. Crim. No. 03-cr-00168
                 District Judge: The Honorable Jerome B. Simandle


                      Submitted Under Third Circuit LAR 34.1(a)
                                November 21, 2003


              Before: RENDELL, BARRY, and MAGILL,* Circuit Judges


                          (Opinion Filed: December 9, 2003)


                                       OPINION




   *
     The Honorable Frank J. Magill, Senior Circuit Judge, United States Court of Appeals
for the Eighth Circuit, sitting by designation.
BARRY, Circuit Judge

       On September 17, 2002, Prudencio Arroyo-Cruz was sentenced to eight months of

imprisonment and two years of supervised release by the U.S. District Court for the

Middle District of Pennsylvania after his conviction for escape, in violation of 18 U.S.C.

§ 751, and theft of government property, in violation of 18 U.S.C. § 641. Arroyo-Cruz

was released from custody on December 6, 2002, and began serving his term of

supervised release. On March 24, 2003, the Probation Department filed a Petition for

Warrant or Summons Under Supervision against him. The petition alleged that he

committed the following four violations of his supervised release: (1) he was arrested on

January 30, 2003 and charged with sexual assault and endangering the welfare of a child;

(2) he failed to notify his probation officer within 72 hours of being arrested on the new

charges; (3) he failed to submit to drug treatment as ordered; and (4) he tested positive

three times for heroin and cocaine, and one time for PCP. A violation hearing was held

and Arroyo-Cruz pled guilty to three Grade C violations – Violation Numbers 2, 3, and 4.

The District Court revoked his term of supervised release and sentenced him to eighteen

months’ incarceration, which exceeded the Guidelines’ policy statement range of five to

eleven months. No additional term of supervised release to be served upon his release

from imprisonment was imposed.

       A timely notice of appeal was filed. Defense counsel subsequently filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), and moved to withdraw from the



                                             2
case because there were no non-frivolous issues for appeal. Arroyo-Cruz, for his part, has

filed a pro se Informal Brief, in which he contends that although he only pled guilty to the

Grade C violations alleged in Violation Numbers 2, 3, and 4, the District Court

improperly sentenced him for the Grade A violation alleged in Violation Number 1. The

District Court had jurisdiction pursuant to 18 U.S.C. § 3583(e), and appellate jurisdiction

is proper in this Court under 28 U.S.C. § 1291. After careful review, we will grant

counsel’s motion to withdraw and affirm the judgment of the District Court.

       Under Anders, if defense counsel finds an appeal “to be wholly frivolous, after a

conscientious examination of it, he should so advise the court and request permission to

withdraw.” Anders, 386 U.S. at 744. Counsel’s request must “be accompanied by a brief

referring to anything in the record that might arguably support the appeal.” Id. When an

Anders brief is submitted, we must inquire: “(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) (citations

omitted). Defense counsel’s obligations “when preparing an Anders brief are (1) to

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

issues, and (2) to explain why the issues are frivolous.” Id. If the court finds that the

appeal is wholly frivolous, “it may grant counsel’s request to withdraw and dismiss the

appeal insofar as federal requirements are concerned, or proceed to a decision on the

merits, if state law so requires. On the other hand, if it finds any of the legal points



                                               3
    arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the

    indigent the assistance of counsel to argue the appeal.” Anders, 386 U.S. at 744.

              Here, defense counsel’s brief addressed in detail the violation hearing, at which

    Arroyo-Cruz pled guilty to Grade C violations, as well as his sentencing by the District

    Court. We are satisfied that counsel thoroughly examined the record and explained why

    any issue would be frivolous. The plea colloquy reveals that before the District Court

    accepted the guilty plea, Arroyo-Cruz understood his constitutional rights, the nature of

    the charges against him, the terms of the plea agreement, and that he faced a statutory

    maximum sentence of 24 months’ imprisonment. Specifically, the District Court advised

    him that it was not bound by the Guidelines, which recommended a sentence between five

    and eleven months for a Grade C violation.1 The Court also established the factual basis

    for the plea. Thus, the record demonstrates that Arroyo-Cruz knowingly and voluntarily

    entered a plea of guilty, and the Court did not err in accepting the plea.

              Nor did the District Court err in imposing the sentence it did. By sentencing

    Arroyo-Cruz to eighteen months of imprisonment, the District Court exceeded the five to




       1
1          The transcript reflects the following colloquy:
2
3                    COURT: So, by pleading guilty, you’re taking a risk that your sentence will
4                    not be within the five to 11 month suggested range, but that it could be
5                    greater than 11 months all the way up to 24 months. Do you understand
6                    that?
7
8                    DEFENDANT: Yes, sir. (App. at 26-27.)

                                                    4
eleven month range of U.S.S.G. § 7B1.4(a) because: (1) although Arroyo-Cruz received

leniency from the sentencing judge on the original offense, he had failed to rehabilitate

himself; and (2) he “made no attempt whatsoever” to comply with the terms of his

supervised release. (App. at 52-53.)

       The District Court acted well within its discretion. The range set forth in U.S.S.G.

§ 7B1.4 is merely advisory. Schwegel, 126 F.3d at 552. Moreover, the transcript reflects

that the District Court carefully examined Arroyo-Cruz’s past and imposed a sentence that

would both punish and rehabilitate him; indeed, the Court could have, but did not,

sentence him up to the statutory maximum of 24 months.

       Arroyo-Cruz argues in his Informal Brief that even though the plea agreement

provided for the dismissal of his Grade A violation in return for his admission of guilt to

the Grade C violations, the District Court improperly sentenced him for the Grade A

violation. We disagree. At sentencing, the District Court clearly stated that it was

focusing on Violations Numbers 2, 3, and 4, which were Grade C violations. (App. at

41.)

       There are no non-frivolous issues that have been identified or presented for appeal.

Accordingly, we will grant defense counsel’s request to withdraw and will affirm the

judgment of the District Court.




                                             5
TO THE CLERK OF THE COURT:

    Kindly file the foregoing Opinion.


                                         /s/ Maryanne Trump Barry
                                              Circuit Judge




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