                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-19-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-4040




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                                                                                  NOT PRECEDENTIAL

                              UNITED STATES COURT OF APPEALS
                                   FOR THE THIRD CIRCUIT


                                              No. 01-4040


                                     UNITED STATES OF AMERICA

                                                    v.

                                     AGUEDO DEJESUS SANCHEZ,
                                                     Appellant


                                      Appeal from the District Court
                                           of the Virgin Islands
                                  (D.C. Criminal No. 00-cr-00645-2)
                              District Judge: Honorable Thomas K. Moore


                              Submitted Under Third Circuit LAR 34.1(a)
                                       on November 15, 2002

                      Before: SCIRICA, ALITO and RENDELL, Circuit Judges

                            (Filed          November 19, 2002                 )


                                      OPINION OF THE COURT


RENDELL, Circuit Judge.

        This appeal arises out of an indictment against Sanchez and two co-defendants

charging a drug conspiracy. All three co-defendants pled guilty. Sanchez’s counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), identifying but finding

wholly meritless possible challenges to Sanchez’s guilty plea and the District Court’s
refusal to downward depart on Sanchez’s sentence for minor role, pursuant to U.S.S.G.

§3B1.2 (2002), and the “safety valve,” 18 U.S.C. §2553(f) (2002). Sanchez has filed an

informal brief appealing his sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000),

claiming that the District Court imposed a penalty beyond the prescribed statutory

maximum and arguing that he was given ineffective assistance of counsel because his

counsel did not raise the Apprendi issue at sentencing or on appeal. Because Sanchez’s

counsel faithfully met the requirements of Anders, and we find upon independent review

that this appeal lacks merit, we will grant counsel’s motion to withdraw and dismiss the

appeal.

          In September 2000, Special Agent Hilary Hodge of the United States Customs

Service observed a boat departing St. Thomas, Virgin Islands with two people on board, later

identified as Sanchez and Miguel Angel Montero-Baez. Sanchez appeared to be directing

Montero-Baez where to go and also aided Montero-Baez in restarting the vessel after the

engine stalled. Law enforcement agents aboard a U.S. Customs aircraft later saw Sanchez,

Montero-Baez, and Julio Moncado-Polomo in the boat throwing bales of cocaine

overboard. At the time of his arrest, Sanchez had several telephone numbers in his

possession that matched those in Moncado-Polomo’s possession. Sanchez was indicted

for conspiracy to possess with intent to distribute and possession with intent to distribute

more than five kilograms of cocaine. He pled guilty to the conspiracy charge, and was

sentenced to 210 months imprisonment, a term of five years supervised release, and

ordered to pay a $100 special assessment.

                                                     2
        The District Court of the Virgin Islands had jurisdiction pursuant to 18 U.S.C. §3231

(2002). We exercise jurisdiction over the District Court’s final order pursuant to 28

U.S.C. §1291 (2002). We review the District Court’s findings of fact for clear error,

United States v. Isaza-Zapata, 148 F.3d 236, 238 (3d Cir. 1998), and exercise plenary

review over its rulings on matters of law. United States v. Queensborough, 227 F.3d 149,

156 (3d Cir. 2000). Finally, we review Sanchez’s counsel’s Anders brief for a

conscientious examination of possible appealable issues, and conduct an independent

review to determine whether there are any issues of merit. Anders, 386 U.S. at 744.

        We conclude that Sanchez’s counsel did conscientiously examine the record,

including in her brief four conceivably appealable issues. All are without merit. First, she

argues that Sanchez might move to withdraw his guilty plea under Federal Rule of Criminal

Procedure 32(e), which allows for withdrawal for “any fair and just reason.” We look to

three factors in evaluating such a motion to withdraw: “(1) whether the defendant asserts his

innocence; (2) whether the government would be prejudiced by his withdrawal; and (3) the

strength of the defendant’s reason to withdraw the plea.” United States v. Huff, 873 F.2d

709, 712 (3d Cir. 1989). Sanchez has never asserted his innocence, therefore this

argument is wholly meritless.

        Second, Sanchez’s counsel argues that Sanchez might challenge his guilty plea on

the grounds that the government breached the agreement. The government has an obligation

to strictly adhere to the terms of a plea bargain. Queensborough, 227 F.3d at 156. Here,

the government agreed to recommend a reduction of two levels for acceptance of

                                                     3
responsibility and an additional reduction of one level for “extraordinary acceptance of

responsibility.” See U.S.S.G. §§ 3E1.1(a) and (b). The government did so. The government

retained the right to allocute at sentencing, and specifically refused Sanchez’s request that

it provide recommendations regarding downward departures for minor role or under the

safety valve. The government’s opposition to these latter downward departure requests

therefore did not breach the plea agreement. Queensborough, 227 F.3d at 158.

        Third, Sanchez’s counsel poses a possible challenge to the District Court’s failure to

depart downward for Sanchez’s minimal or minor role in the offense. U.S.S.G. §3B1.2. In

determining whether a defendant was a minimal or minor participant in the crime, a district

court must consider the defendant’s relative culpability as compared with the other

participants. Isaza-Zapata, 148 F.3d at 242. The District Court correctly identified this

legal requirement, and did not clearly err in finding that Sanchez’s role was “equal to that of

the other individual he went out with,” namely, Montero-Baez. The District Court relied on

the testimony of Special Agent Hodge, who testified that Sanchez directed the vessel upon

pursuit by law enforcement agents, assisted in restarting the vessel after it stalled, and had

numerous telephone numbers in his possession that matched those in the possession of

Montero-Baez. In light of this uncontroverted testimony, the District Court’s finding that

Sanchez was not a minor participant is not clearly erroneous.

        Finally, Sanchez’s counsel identifies a possible challenge to the District Court’s

failure to depart downward under the safety valve provision, 18 U.S.C. §2553(f), which

enables a sentencing judge to depart downward if he or she finds that the defendant meets

                                                     4
five criteria. The District Court found that Sanchez did not meet prong (5), requiring a

defendant to truthfully provide to the government all information and evidence the

defendant has concerning the offense or offenses that were part of the same course of

conduct or of a common scheme or plan. §2553(f)(5). The Court heard the testimony of

Special Agent Hodge, who stated that Sanchez had not been truthful because he lied about

his arrival in St. Thomas, refused to identify the phone numbers found in his pockets, and

incorrectly identified a co-conspirator. The Court thus relied on specific information

regarding Sanchez’s untruthfulness. In light of Agent Hodge’s uncontroverted testimony,

the District Court’s finding that Sanchez had not been fully forthcoming with the

government is not clearly erroneous.

        By conscientiously examining the record and identifying conceivably appealable

issues, Sanchez’s counsel met the requirements under Anders. We will therefore grant her

motion to withdraw.

        In an informal brief, Sanchez himself raises two issues: 1) that his sentence was

imposed in violation of Apprendi, and 2) that his counsel was ineffective because she failed

to raise the Apprendi issue. Neither of these claims has merit.

        Under Apprendi, a sentencing judge may not determine facts that increase the

penalty for a crime beyond the prescribed statutory maximum. 530 U.S. at 476. However,

nothing in Apprendi restricts a judge’s ability to exercise his or her discretion in imposing

a sentence within the range prescribed by statute. Id. at 481. Sanchez argues that the

sentencing judge determined the amount of cocaine attributable to him and then used this

                                                     5
fact to arrive at a sentence. This is true. However, in doing so, the judge arrived at a

sentence well within the prescribed statutory range.1 Sanchez’s Apprendi challenge

therefore has no merit.

        Because his Apprendi argument is meritless, Sanchez’s claim that his counsel

provided ineffective assistance by failing to raise an Apprendi issue must also fail.

Sanchez’s counsel’s failure to raise Apprendi is apparent from the record, therefore we may

review Sanchez’s ineffective assistance claim on direct appeal. United States v. Headley,

923 F.2d 1079, 1083 (3d Cir. 1991). To prove ineffectiveness of counsel, Sanchez must

establish his counsel’s performance was deficient, and that this deficiency prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). As discussed above,

counsel’s failure to raise Apprendi was completely reasonable and did not in any way affect

the Court’s sentencing decision. We therefore find that Sanchez’s ineffective assistance

claim lacks all merit.

        For the foregoing reasons, we will grant Sanchez’s counsel’s motion to withdraw and


        1
          Sanchez’s sentence of 210 months is well within the guideline range for conspiracy
to possess with intent to distribute more than five kilograms of cocaine, which carries a
statutory maximum of life imprisonment. 21 U.S.C. §841(b)(1)(A) (2002). Sanchez
makes the unsupported assertion that he actually pled guilty to conspiracy to possess with
intent to distribute “50 grams or more” of cocaine, and that the District Court violated
Apprendi by finding that he had conspired to possess “almost 500 kilograms” of cocaine.
However, the indictment clearly states that he was charged with conspiracy to possess with
intent to distribute “more than five kilograms of cocaine.” The drug amount, type, and
statutory maximum of life imprisonment were all confirmed several times during the plea
hearing. Furthermore, even assuming arguendo that Sanchez had pled guilty to possession
of 50 grams or more of cocaine, his 210 month sentence is still below the statutory
maximum of 20 years imprisonment. §841(b)(1)(C).

                                                     6
dismiss the appeal.

____________________________




                               7
TO THE CLERK OF COURT:

     Please file the foregoing opinion.




                                                /s/Marjorie O. Rendell
                                              Circuit Judge




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