                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-24-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1628




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Recommended Citation
"USA v. Herrera" (2003). 2003 Decisions. Paper 189.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/189


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                                       NOT PRECEDENTIAL




        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                       NO. 02-1628


             UNITED STATES OF AMERICA

                            v.

                    FLOR HERRERA,
                                       Appellant




      On Appeal From the United States District Court
         For the Eastern District of Pennsylvania
          (D.C. Crim. Action No. 01-cr-00030-3)
       District Judge: Honorable Harvey Bartle, III


      Submitted Pursuant to Third Circuit LAR 34.1(a)
                    October 17, 2003


BEFORE: SLOVITER, ROTH and STAPLETON, Circuit Judges

            (Opinion Filed: October 24, 2003)




               OPINION OF THE COURT
STAPLETON, Circuit Judge:

              Appellant Flor Herrera pled guilty to four drug offenses. He was given a

concurrent sentence on all counts of 96 months of incarceration and six years of

supervised release.

              Following the filing of the notice of appeal, defense counsel filed a motion

to withdraw as counsel and a brief in support of this motion pursuant to the decision in

Anders v. California, 386 U.S. 738 (1967). Through these submissions, we are advised

that “there is no non-frivolous issue that can be raised on [Herrera’s] behalf. . . .” Herrera

was provided with a copy of the motion and the brief and was given an opportunity to file

a pro se brief. He did not avail himself of this opportunity.

              In accordance with the mandate established in Anders, we have conducted

an independent examination of the record before us in order to determine whether it

presents any non-frivolous issue. Because we conclude that it does not, we will affirm

the judgment of the District Court. We will also grant defense counsel’s motion to

withdraw.

              In his Anders brief, counsel identifies three issues as arguably non-

frivolous: (1) whether there was insufficient evidence to support the conviction; (2)

whether appellant’s plea was knowing, intelligent, and voluntary; and (3) whether the

sentence was improper.1

   1
    Without saying whether Herrera wished to raise the issue, or whether there is any
basis for it, counsel noted that he was trial counsel and could not raise his own

                                              2
              On the basis of our review, we are satisfied that all three of these issues are

without merit. The government’s evidence established beyond peradventure that Herrera

was a member of a conspiracy that sold bulk quantities of drugs from July of 2000 until

January of 2001. That evidence consisted of tapes and purchases by undercover agents

and cooperating witnesses. Also, a search conducted pursuant to a valid warrant resulted

in the seizure of 13.5 grams of heroin and 119.4 grams of crack cocaine, which could be

linked to appellant.

              The transcript of the plea hearing shows that the Court meticulously

reviewed with the defendant his rights, the nature and extent of the rights that he was

waiving, his satisfaction with his attorney, the potential penalties he faced, the evidence

the government had against him, and the nature of the sentencing guideline calculations in

his case. Herrera’s plea was clearly knowing, intelligent, and voluntary.

              With respect to sentencing, the probation office adopted the stipulations of

the parties, and the Court adopted the findings of the probation office. The calculation of

the Guidelines range was in accordance with those guidelines. The Court granted the

government’s motions to depart from the statutory minimum sentence and departed

downward from the Sentencing Guidelines. The District Court imposed a sentence that

was 72 months less than the minimum of the applicable range and was two years less than

the mandatory minimum sentence. There thus is no non-frivolous basis to argue that the



ineffectiveness as a basis for appeal.

                                              3
sentence was illegal.

              The judgment of the District Court will be affirmed. Counsel’s motion to

withdraw will be granted.




                                           4
TO THE CLERK:

         Please file the foregoing Not Precedential Opinion.




                                       /s/ Walter K. Stapleton
                                       ____________________________
                                       Circuit Judge




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