                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-6-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2342




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No: 02-2342

                           UNITED STATES OF AMERICA

                                              v.

                                 JOHNNY MARTINEZ
                                       a/k/a
                                      BOSS


                                        Johnny Martinez,

                                              Appellant

                 On Appeal from the United States District Court for the
                           Eastern District of Pennsylvania
                           D.C. Criminal No. 00-cr-00024-6
                      District Judge: Hon. Ronald L. Buckwalter

                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 19, 2004

                      Before: SCIRICA, Chief Judge, McKEE and
                              CHERTOFF, Circuit Judges

                             (Opinion filed: January 6, 2005)

                                        OPINION

McKEE, Circuit Judge.

      Johnny Martinez appeals from the sentence that was imposed following his plea of

guilty to one count of a superceding indictment charging him with participating in a

conspiracy to distribute more than 50 grams of cocaine base, as well as heroin and an
undetermined amount of marijuana. For the reasons that follow, we will affirm.

       Inasmuch as we write only for the parties, we need not reiterate the factual or

procedural history of this case in detail. The defendant pled guilty pursuant to a plea

agreement and stipulated that his offense involved more than 3,000 grams of crack

cocaine. His plea subjected him to a mandatory minimum sentence of 10 years

imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A). The sentence which he received, 70

months in prison followed by a term of supervised release, is less than the mandatory

minimum that would have applied absent the district court’s acceptance of the

government’s motion for a downward departure, and consideration the defendant received

for his acceptance of responsibility. The sentence is therefore clearly legal, and there is

no jurisdictional issue. See 18 U.S.C. § 3231.

       Defense counsel has submitted a brief pursuant to Anders v. California, 386 U.S.

738 (1967) by which counsel represents that he has undertaken a conscientious review of

the record and is unable to identify any non-frivolous issue for appeal. We agree that no

such issue exists.

       We do note, however, that although the government states in its brief that “[t]he

district court conducted a full and comprehensive plea colloquy [,]” Appellee’s Br. at 10,

defense counsel correctly notes that the district court failed to explain the effect of

supervised release. See Appellant’s Br. at 9. Nevertheless, as defense counsel concludes,

that error is harmless. Boykin v. Alabama, 395 U.S. 238 (1969), and Fed. R. Crim. Proc.



                                               2
11(h). See also, U.S. v. Henry, 893 F.2d 46, 48 (3d Cir. 1990).

       The colloquy conducted by the district court explained that defendant was waiving

his right to self incrimination, trial by jury, and his right to confront his accusers.

Defendant was informed of the nature of the charge against him, the minimum penalty

provided by law, and the maximum possible penalty provided by law. Therefore, failure

to elaborate upon the operation of supervised release did not affect the defendant’s

substantial rights, and we therefore conclude that he knowingly, voluntarily, and

intelligently, pled guilty to count I. Given the court’s jurisdiction, there are no non-

frivolous issues for appeal and nothing more needs be said. See U.S. v. Ptomey, 366 F.2d

759, 660 (3d Cir. 1966) (“A plea of guilty is a waiver of all nonjurisdictional defects and

defenses and constitutes an admission of guilt.”).

       Accordingly, for the reasons set forth herein we will affirm the judgment of

sentence entered on May 10, 2002.




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