                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-14-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4427




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                                                NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                      No. 03-4427


            UNITED STATES OF AMERICA

                           v.

               JUAN RAFAEL JIMENEZ,
                     a/k/a RAFFI

                                Juan Jimenez,

                                       Appellant


       Appeal from the United States District Court
                for the District of New Jersey
           D.C. Criminal Action No. 03-cr-00159
      District Judge: Honorable Dennis M. Cavanaugh


        Submitted Under Third Circuit LAR 34.1(a)
                     June 29, 2004


Before: AMBRO, BECKER and GREENBERG, Circuit Judges

              (Opinion filed July 14, 2004)



                       OPINION
AMBRO, Circuit Judge

       Juan Jiminez pled guilty to conspiracy to distribute and possess with the intent to

distribute more than 100 grams of heroin in violation of 21 U.S.C. § 841(a) and (b).

Though Jiminez timely appealed his conviction and sentence, his appellate counsel has

filed an Anders brief stating that no nonfrivolous issues exist for appeal and moved to

withdraw as Jiminez’s counsel. After reviewing the record in this case, we dismiss the

appeal and grant counsel’s motion.

                            Factual and Procedural History

       In 1999, Jimenez was convicted in the Middle District of Florida of conspiracy to

import, attempt to import, conspiracy to possess, and possession with intent to distribute

MDMA (ecstasy). He was sentenced to twelve months imprisonment and two years

supervised release. In August 2000, after serving his sentence, Jimenez was deported to

the Dominican Republic. In January 2002, he illegally reentered the United States

without reporting to the United States Probation Office.

       On July 1, 2002, Jimenez was arrested in Newark, New Jersey when he sold 500

grams of heroin to an undercover Drug Enforcement Agency (“DEA”) agent for

$35,000. On March 5, 2003, pursuant to a cooperating plea agreement with the United

States Attorney’s Office, he pled guilty to conspiracy to distribute and possess with intent

to distribute more than 100 grams of heroin. On May 20, 2003, jurisdiction over

Jimenez’s supervised release was transferred from the Middle District of Florida to the


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District of New Jersey. Jimenez pled guilty to three violations of his prior supervised

release.

       On October 9, 2003, the District Court for the District of New Jersey sentenced

Jimenez for all offenses. Granting the Government’s motion for downward departure

based on his substantial assistance to law enforcement, the District Court sentenced

Jimenez to 40 months imprisonment for the New Jersey drug conspiracy conviction and

12 months imprisonment for violation of supervised release, both sentences to run

consecutively.

       Jimenez appealed his sentence pro se, and counsel was appointed to represent

him. On November 24, 2003, counsel filed a motion to withdraw from that

representation, a motion we denied. He has now filed an Anders brief asserting that the

appeal raises no nonfrivolous issues and seeks again to withdraw as counsel.

                                         Discussion

       Third Circuit Local Appellate Rule 109.2(a) provides that “[w]here, upon review

of the district court record, trial counsel is persuaded that the appeal presents no issue of

even arguable merit, trial counsel may file a motion to withdraw and supporting brief

pursuant to Anders v. California, [386 U.S. 738 (1967)].” In reviewing an Anders

motion, we must consider both “(1) whether counsel adequately fulfilled [Rule

109.2(a)’s] requirements; and (2) whether an independent review of the record presents

any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 299 (3d Cir. 2001).


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       Thus we inquire first whether counsel satisfied his duties under Rule 109.2(a) by

thoroughly examining the record in search of appealable issues and explaining why any

potential issues are frivolous. Id. at 300. While he “need not raise and reject every

possible claim,” he must conscientiously examine the record. Id. Counsel’s brief, which

refers several times to his “review of the record in this matter,” fulfills the first prong.

To be sure, mere recitation by counsel that he has reviewed the record is inadequate. See,

e.g., id. at 299 (“Presenting what amounts to a no-merit letter devoid of analysis will not

suffice”); see also United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000) (quotation

omitted) (“[T]he brief at a minimum must assure us that [counsel] has made a sufficiently

thorough evaluation of the record to conclude that no further discussion of other areas of

the case is necessary.”). But counsel also recites the relevant facts and provides short but

accurate explanations for the inadequacy of Jimenez’s claims. The record in this case so

clearly demonstrates the propriety of sentencing that counsel’s brevity is justified.

       As an initial matter, Jimenez waived his appellate rights. Appellate waivers “are

generally permissible if entered into knowingly and voluntarily.” United States v.

Khattak, 273 F.3d 557, 558 (3d Cir. 2001). There is no indication that Jimenez’s waiver

was not knowing and voluntary. At the plea colloquy, the District Court questioned

Jimenez at length regarding his familiarity with and understanding of the plea agreement

that Jimenez signed. That agreement contains a section entitled “Waiver of Appeal and

Post-Sentencing Rights,” which incorporates Schedule A. Schedule A, in turn, provides


                                               4
in relevant part:

              Juan Rafael Jimenez knows that he has, and voluntarily waives, the
              right to file any appeal, any collateral attack, or any other writ or
              motion after sentencing, including but not limited to an appeal under
              18 U.S.C. § 3742 or a motion under 28 U.S.C. § 2255, which
              challenges the sentencing court’s determination or imposition of the
              offense level, if the total offense level determined by the court is equal
              to or less than twenty-seven.

The sentence imposed by the District Court was well within the guidelines contemplated in

the plea agreement. In fact, based on the Government’s recommendation for downward

departure, Jimenez was assigned a total offense level of 19.

       Even were we to set aside the appellate waiver, Jimenez would be unable to

identify a non-frivolous issue for appeal. His pro se notice of appeal presents three basic

claims. First, he asserts that he was denied effective assistance of counsel. Second, he

claims that the Government impermissibly used against him an admission made in the

course of his cooperation. Third, he suggests that his sentence constitutes cruel and

unusual punishment.

       The first and third arguments warrant little discussion. We do not consider

ineffective assistance of counsel claims on direct review. United States v. Thornton, 327

F.3d 268, 271–72 (3d Cir. 2003). And five years imprisonment—not to mention a

significantly reduced sentence based on the Government’s motion for downward

departure—manifestly does not violate the Eighth Amendment.

       Jimenez abandons these arguments in his response to counsel’s Anders brief.


                                              5
Instead, he focuses on his second claim. In his request for relief, he asks us to “eliminate

the re-entry charge” based on purported assurances by the Government that he would not

be charged with illegal reentry. Ultimately, this argument too is unavailing.

       Jimenez was sentenced for violating his supervised release by “re-enter[ing] the

United States without the express permission of the Attorney General.” In addition to

forty months imprisonment on the heroin charges, the District Court sentenced Jimenez

to a consecutive prison term of twelve months based on three violations of the conditions

of supervised release imposed after his Florida narcotics conviction: committing a federal

crime, illegal reentry, and failure to report to the U.S. Probation Office after returning to

the United States. He received twelve months for the first violation and eight months for

the others, with all three to run concurrently.

       Jimenez contends that the eight-month sentence for illegal reentry in violation of

the conditions of his supervised release contravened his plea agreement with the

Government. This argument fails for many reasons. There is no evidence that the

Government promised Jimenez he would not be charged with illegal reentry. On the

contrary, Jimenez’s current counsel, who also served as trial counsel, asserts that Jimenez

“received every benefit that was owed to him by the Government.” In any event,

Jimenez was not charged with the substantive offense of illegal reentry under 8 U.S.C.

§ 1326.

       Moreover, the Government cannot be said to have based its supervised release


                                              6
charges on information provided by Jimenez during the course of his cooperation with

law enforcement. As counsel aptly explains, “Appellant’s violation of supervised

[release] in the Middle District of Florida was apparent and substantiated by the facts

long before Appellant entered into a cooperating plea agreement with the United States

Attorney’s Office merely by the fact that he was back in the United States, had not

notified Probation in the Middle District of Florida and . . . was involved in a new

narcotics conspiracy in the District of New Jersey.” In other words, that Jimenez had

violated the terms of his supervised release was evident from his subsequent arrest, in the

United States, on drug charges.

       Finally, Jimenez suggests that in order to be sentenced for illegal reentry he “must

be charged, tried, and found guilty or plead guilty to this violation.” But he did in fact

plead guilty to all three violations of his supervised release.

       Because we conclude that the appeal is wholly frivolous, we affirm Jimenez’s

conviction and sentence. In addition, we grant counsel’s motion to withdraw.




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