                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-8-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5419




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"USA v. Santiago" (2007). 2007 Decisions. Paper 1646.
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                                                                     NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   _____________

                                        No. 05-5419
                                        ____________

                             UNITED STATES OF AMERICA,

                                               v.

                                    ANGEL SANTIAGO,

                                                  Appellant.
                        ____________________________________

                        Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                              (D.C. Criminal No. 91-00301-26)
                       District Judge: Honorable Lawrence F. Stengel

                        ____________________________________

                        Submitted Under Third Circuit LAR 34.1(a)
                                    January 30, 2007
                        ____________________________________

                      Before: BARRY and ROTH, Circuit Judges, and
                        DEBEVOISE * , Senior District Court Judge

                                ( Filed: February 8, 2007)

                                    _________________

                                         OPINION
                                    __________________


       *
           Honorable Dickinson R. Debevoise, Senior District Court Judge for the District of New
Jersey, sitting by designation.
Debevoise, Senior District Court Judge

       Appellant, Angel Santiago, appeals from a judgment revoking his supervised release and

sentencing him to 12 months and one day of imprisonment, followed by 3 years of supervised

release. Santiago’s counsel on appeal, Robert Epstein, Assistant Federal Defender, filed an

Anders motion to withdraw as counsel, asserting that all potential grounds for appeal are

frivolous. For the reasons set forth below we grant the motion and affirm the District Court’s

revocation of supervised release.

                                                 I.

       Under Anders v. California, 386 U.S. 738 (1967), if counsel “finds [a] case to be wholly

frivolous, after a conscientious examination” of the potential grounds for appeal, s/he should

“advise the court and request permission to withdraw.” Id. at 744. This request must be

accompanied by “a brief referring to anything in the record that might arguably support the

appeal,” id., “explain[ing] to the court why the issues are frivolous,” United States v. Marvin,

211 F.3d 778, 781 (3d Cir. 2000), and demonstrating that s/he has “thoroughly scoured the record

in search of appealable issues,” id. at 780. A copy of counsel’s brief must be furnished to the

appellant, who must be given time to raise non-frivolous arguments in a pro se brief. Anders,

386 U.S. at 744; Third Circuit LAR 109.2(a)(2000).

       We “confine our scrutiny to those portions of the record identified by an adequate

Anders brief . . . [and] those issues raised in Appellant’s pro se brief.” United States v.

Youla, 241 F.3d 296, 301 (3d Cir. 2001). We do not “comb the record . . . for possible

nonfrivolous issues that both the lawyer and his client may have overlooked,” as “[our]


                                                 2
duty is merely to determine whether counsel is correct in believing those grounds [raised

are] frivolous.” United States v. Wagner, 103 F.3d 551, 552-53 (7th Cir. 1996). We

grant counsel’s Anders motion to withdraw if we believe “that the attorney has provided

the client with a diligent and thorough search of the record for any arguable claim,”

McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988), and if we conclude

“that the appeal lacks any basis in law or fact,” id. at 438 n.10.

                                                 II.

       As we write for the parties, only a brief summary of pertinent facts and procedural

history is necessary. Santiago pled guilty to conspiracy to distribute heroin in violation of 21

U.S.C. § 846 in the Eastern District of Pennsylvania. On September 23, 1993, the District Court

sentenced him to 156 months incarceration, to run concurrently with a previously imposed state

sentence, ten years of supervised release, a fine of $2,500, and a $50 special assessment. He was

released from custody and began supervised release on January 27, 2005.

       On September 21, 2005, Santiago’s probation officer filed a violation petition alleging

that Santiago had violated his conditions of supervised release in four respects: i) failing to report

to his probation officer; ii) failing to provide notification of change of employment; iii) using

heroin and cocaine; and iv) failing to participate in outpatient drug counseling at the direction of

the probation office.

       On December 5, 2005, a hearing was held on the violations. The charging document set

forth full details of the four violations, and Santiago’s attorney stipulated to them. The District

Court revoked Santiago’s supervised release and sentenced him to 12 months and one day of



                                                  3
imprisonment, followed by three years of supervised release, the first three months of which are

to be served in a halfway house.

       Santiago filed a timely notice of appeal.

                                                III.

       18 U.S.C. § 3583(e) empowers federal district courts to revoke a term of supervised

release if the court finds by a preponderance of the evidence that the defendant violated a

condition of the supervised release. Defense counsel brings to the Court’s attention one case

which held that initiation of a violation of supervised release proceeding by means of a probation

officer’s petition to a judge, as happened here, is invalid. United States v. Jones, 957 F. Supp.

1088, 1090-91 (E.D. Ark. 1997). That case, as the defense demonstrates, is obviously wrong and

has been universally rejected.

       The violation proceeding in the present case was properly instituted and properly

conducted in full accordance with Fed. R. Crim. P. 32. Santiago did not contest the charges; in

fact, his attorney stipulated to them.

       With respect to the sentence, Santiago had the opportunity to address the court and did so.

The sentence of 12 months and one day was well within the limits set forth in the controlling

statutes and pertinent sentencing guideline provisions.

       Because Santiago’s offense of conviction was a Class A felony (21 U.S.C. § 846), the

term of imprisonment after revocation of supervised release was limited to not more than 5 years.

18 U.S.C. § 3583(e)(3). The sentence suggested in the Sentencing Guidelines Manual, which is

advisory only, is 8-14 months.

       Santiago did not submit an Informal Brief in response to the Anders brief. No flaw


                                                   4
appears in the revocation procedures, either procedurally or substantively, and thus Santiago’s

appeal is totally lacking in merit.

        For the reasons set forth above, we affirm the District Court’s revocation of Santiago’s

supervised release and the sentence the Court imposed. We grant counsel’s motion to withdraw.




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