                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-10-2009

USA v. Herman Mercado
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1410




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 08-1410


                           UNITED STATES OF AMERICA

                                           v.

                                HERMAN MERCADO,
                                              Appellant


                     Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                         (D.C. Criminal No. 06-cr-00318-002)
                   District Judge: Honorable Christopher C. Conner


                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 19, 2009

                   Before: RENDELL and GARTH, Circuit Judges,
                           and PADOVA, District Judge*.

                                 (Filed: June 10, 2009)
                                      __________

                              OPINION OF THE COURT
                                    __________

RENDELL, Circuit Judge.

      Appellant Herman Mercado pled guilty to one count of possession with intent to

____________________

    * Honorable John R. Padova, Senior Judge of the United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
distribute fifty grams or more of “crack” cocaine in violation of 21 U.S.C. § 841(a)(1).

The District Court for the Middle District of Pennsylvania entered judgment and

sentenced Mercado to 120 months’ incarceration, the statutory minimum sentence under

21 U.S.C. § 841(b)(1)(A)(iii). Mercado appeals the sentence on several grounds.

Mercado’s attorney moved to withdraw as counsel and filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967). Finding no non-frivolous arguments in

support of Mercado’s appeal, we will affirm the judgment and sentence of the District

Court and grant the motion to withdraw.1

       In assessing an Anders brief, we must determine: 1) whether counsel has

thoroughly examined the record and explained why the appeal presents no issues of

arguable merit; and 2) whether our independent review of the record presents any non-

frivolous issues. United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001); Third Circuit

L.A.R. 109.2(a). If the Anders brief appears adequate on its face, we will confine our

inquiry to the portions of the record identified in an appellant’s pro se brief and counsel’s

Anders brief. Youla, 241 F.3d at 301.

       Here, counsel’s Anders brief appears adequate on its face. Counsel identified three

general grounds for challenging a conviction and sentence based on a guilty plea –

jurisdiction, validity and voluntariness of the plea, and legality and reasonableness of the




  1
   We exercise jurisdiction under 28 U.S.C. § 1291. United States v. Tannis, 942 F.2d
196, 197 (3d Cir. 1991).

                                              2
sentence – and thoroughly explained why there were no arguably appealable issues in

Mercado’s case. Therefore, we restrict our analysis to the issues raised by counsel and

Mercado in his pro se brief.

       First, Mercado argues that the District Court was required, but failed, to examine

disparities in the penalties prescribed for crack cocaine and powder cocaine offenses

(“crack-cocaine disparity”) under the U.S. Sentencing Guidelines.2 As support for the per

se rule urged, Mercado cites Kimbrough v. United States, 552 U.S. 85 (2007). In

Kimbrough, the Supreme Court made clear that a district court may – not that it must –

consider the crack-cocaine disparity in its analysis of the 18 U.S.C. § 3553(a) factors. Id.

Accordingly, since Kimbrough was decided, two courts of appeals have expressly rejected

a categorical rule mandating consideration of the crack-cocaine disparity under §

3553(a)(6) in every case. See United States v. Roberson, 517 F.3d 990, 995 (8th Cir.

2008); United States v. Berggren, 267 Fed. Appx. 868, 870 (11th Cir. 2008). Mercado’s

insistence that the crack-cocaine disparity was “unwarranted” under § 3553(a)(6) is

particularly unpersuasive here, as the Court imposed the statutory minimum sentence, and

it was identical to that which Mercado would have received under Amendment 706 of the

Sentencing Guidelines.


  2
    Before the adoption of Amendment 706 in November of 2007, the Sentencing
Guidelines reflected a uniform 100 to 1 crack/powder cocaine disparity. U.S.
S ENTENCING G UIDELINES M ANUAL § 2D1.1(c) (2006) (amended Nov. 2007). Under
Amendment 706, the ratio varies, at different offense levels, between 25 to 1 and 80 to 1.
U.S.S.G. § 2D1.1(c)(2008).

                                              3
       Second, Mercado asserts that the District Court believed – erroneously – that the

Sentencing Guidelines were mandatory, and that a downward departure to reflect the

crack-cocaine disparity was prohibited. For his position, Mercado relies entirely on the

Court’s failure specifically to cite Kimbrough; Mercado concedes that there is no

affirmative evidence in the record of any misapprehension. In any event, we identify

clear evidence in the record evincing the District Court’s awareness of its discretion to

deviate from the Guidelines. The Court stated, “Although I am required to start with the

Guidelines as an initial benchmark, I will not presume that the Guidelines is [sic]

reasonable. Rather, I will make an individualized assessment based upon the facts

presented.” A. 19. The District Court also cites United States v. Gunter, where we

recognized a district court’s discretion to deviate from the Guidelines. 462 F.3d 237, 248

(3d Cir. 2006). In Gunter, we stated, “a sentencing court errs when it believes that it has

no discretion to consider the crack/powder cocaine differential incorporated in the

Guidelines,” and that “district courts may consider the crack/powder cocaine differential

in the Guidelines as a factor, but not a mandate, in the post-Booker sentencing process.”

Id. Because we conclude that the District Court properly understood that the Guidelines

were advisory rather than mandatory, we reject Mercado’s second contention.

       Finally, Mercado argues that his sentence should be vacated and his base offense

level recalculated under an amendment to the Guidelines that was adopted after entry of

his guilty plea. Mercado’s argument fails at the outset, however, because he was



                                             4
sentenced under Amendment 706 and, as indicated earlier, received the statutory

minimum sentence. A. 20.

       For the foregoing reasons, we conclude that Counsel filed an adequate Anders

brief, and that our independent review of the record reveals no appealable issues of

arguable merit. Therefore, we will AFFIRM the judgment of the District Court and

GRANT Counsel’s motion to withdraw.




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