                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-1-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4568




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"USA v. Cuartas" (2008). 2008 Decisions. Paper 926.
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                                              NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT




                    No. 06-4568




         UNITED STATES OF AMERICA

                         v.

              ADRIANA CUARTAS,
                           Appellant




   On Appeal from the United States District Court
         for the District Court of New Jersey
           (D.C. Crim. No. 04-cr-00609-2)
    District Judge: Hon. Dickinson R. Debevoise




     Submitted Under Third Circuit LAR 34.1(a)
                  June 27, 2008

Before: SLOVITER, BARRY and ROTH, Circuit Judges

                 Filed July 1, 2008




                     OPINION
SLOVITER, Circuit Judge.

       Adriana Cuartas, who was convicted by a jury of conspiracy to distribute one

kilogram or more of heroin, in violation of 21 U.S.C. § 846, and sentenced to the statutory

mandatory minimum sentence of 120 months imprisonment, see 21 U.S.C. §

841(b)(1)(A), appeals both her conviction and sentence.1 Her counsel, who filed a timely

appeal, filed a motion to withdraw as counsel and a brief in support of that motion

pursuant to Anders v. California, 386 U.S. 738, 744 (1967). Under Anders, if, after

review of the district court record and a conscientious investigation, counsel is convinced

that the appeal presents no issue of arguable merit, counsel may properly ask to withdraw

while filing a brief referring to anything in the record that might arguably support the

appeal. Id. at 741-42, 744. To satisfy the Anders requirements, appellant’s counsel must

“satisfy the court that he or she has thoroughly scoured the record in search of appealable

issues” and then “explain why the issues are frivolous.” United States v. Marvin, 211

F.3d 778, 780 (3d Cir. 2000) (citing United States v. Tabb, 125 F.3d 583, 585-86 (7th Cir.

1997)). “The Court’s inquiry when counsel submits an Anders brief is thus twofold: (1)

whether counsel adequately fulfilled [Third Circuit Local Appellate Rule 109.2's]

requirements; and (2) whether an independent review of the record presents any

nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).



                    1
                    The District Court had jurisdiction pursuant to 18 U.S.C.
            § 3231. We have jurisdiction to review this matter pursuant to 28
            U.S.C. § 1291.

                                              2
                                             I.

       In August 2004, the United States Customs Service learned of a plan to smuggle

approximately two kilograms of heroin from Bogota, Colombia to this country. After

seizing the shipment, Customs used information learned in connection with the seizure to

set up a controlled delivery of sham heroin to the intended recipients in the United States.

On behalf of the government, a confidential informant (“CI”) called a New York

telephone number retrieved during the seizure and spoke with co-conspirator Elizabeth

Olaya, employing a password associated with the smuggling operation. Later that day,

the CI received a call from Cuartas and the two discussed arrangements for the meeting.

Cuartas spoke with the CI a number of times in the following days and attempted to

change the meeting place from Newark, New Jersey to Queens, New York, which she

said would be less “complicated,” App. at 30, and “safer,” App. at 33. Ultimately,

however, they agreed to meet at a hotel diner near the Newark Airport.

       On the agreed-upon day, law enforcement agents witnessed Cuartas and Olaya

enter the diner and make contact with the CI. The three then exited the diner and walked

to their respective cars, with Olaya entering the passenger side of a car driven by Cuartas.

Cuartas pulled up alongside the CI’s car, at which point Olaya exited the vehicle with a

bag containing $10,000 and met the CI at his car. After Olaya exchanged the money for

the sham heroin retrieved from the CI’s trunk, law enforcement agents arrested Olaya and

Cuartas. Cuartas and Olaya were subsequently detained and questioned by federal agents



                                             3
and charged with conspiracy to distribute heroin.

       Cuartas filed pre-trial motions to suppress the monitored tape recordings of her

telephone conversations with the CI and certain post-arrest statements that she made

while in the custody of the Department of Homeland Security, Bureau of Immigration and

Customs Enforcement (“ICE”) at Newark Airport following her arrest. The District

Court held a two-day evidentiary hearing on the motions to suppress, and then made

extensive findings of fact on the credibility of the witnesses, including Cuartas, who

testified at the hearing and submitted an affidavit in support of the motion to suppress her

statements. The District Court found “that Cuartas received her rights and signed the

waiver of rights form in advance of the agents questioning of her . . . and that the timing

and method of the delivery of the rights and obtaining her signature took place as

described by” one of the agents. App. at 63. The District Court also refused to suppress

the recorded conversations, finding that Cuartas’ arguments went to the weight of the

evidence, rather than its admissibility.

       During jury selection, the government used one of its peremptory strikes on a

prospective juror of ostensibly Hispanic origin named Pia Garcia. Shortly after the

District Court had dismissed Garcia, defense counsel raised “a potential Batson

challenge” to the strike and requested that the government state on the record its basis for

excusing her. App. at 78. The government explained that one of its key trial witnesses

had been convicted of shoplifting on several occasions and that it was concerned that



                                              4
Garcia, who managed a store and was married to a store manager, may have been biased

against the witness on that basis. The District Court concluded that this was “[p]retty

thin,” but “a legitimate reason” nonetheless, App. at 79, and defense counsel “accept[ed]

the [government’s] representation” that the shoplifting convictions would have been

elicited at trial, App. at 80.

       Cuartas testified in her own defense at trial, denying that she was involved in the

narcotics transaction or that she made any incriminating statements after being arrested.

The jury reached a guilty verdict and affirmatively answered a special interrogatory

regarding whether the government had proved that the conspiracy involved one kilogram

or more of heroin. According to the PSR, Cuartas faced a Sentencing Guidelines range of

151-188 months imprisonment. The District Court declined to apply the suggested

aggravating role adjustment, thereby reducing Cuartas’ Guidelines range to 121-151

months, but the Court declined to apply a mitigating role adjustment or to grant a

downward departure based on diminished capacity, mental and emotional condition, or

family ties and responsibilities. The District Court then applied the sentencing procedure

set forth in United States v. Booker, 543 U.S. 220 (2005), and imposed a non-Guidelines

sentence of 120 months imprisonment, the statutory mandatory minimum for her offense.

       After the appeal was filed, Cuartas was advised of her right to file a pro se brief in

this court in light of her counsel’s Anders brief. Although she did not do so, she filed a

letter with the court requesting new counsel, stating that she has “definitely broken the



                                              5
law,” but persisting that she had not been given her Miranda rights, that she did not

“suspect anything under-handed was going on,” and that her sentence was not “fair or

appropriate.” Letter from Adriana Cuartas to Clerk of the Court, United States Court of

Appeals for the Third Circuit (June 12, 2007). We have reviewed the court record to

determine whether the appeal is “wholly frivolous,” see Penson v. Ohio, 488 U.S. 75, 80

(1988), and agree with counsel that it is.

                                             II.

       Cuartas’ attorney has fulfilled his duty under Anders. He addressed potential

appealable issues at each stage of the proceedings — pre-trial motions, trial, and

sentencing — and found no non-frivolous issues. We have also reviewed each stage of

the proceedings and find no non-frivolous issues for appeal.

       After hearing the testimony of Cuartas, Olaya, and several law enforcement agents

over the course of a two-day evidentiary hearing, the District Court found, as a matter of

fact, that law enforcement agents issued pursuant to Miranda v. Arizona, 384 U.S. 436

(1966), warnings to Cuartas before taking her statement and that Cuartas was inconsistent

about whether she had made admissions to the law enforcement officers after having been

given her rights. The District Court’s factual findings, which were based on witness

credibility and Cuartas’ inconsistent statements, are reversible only if they are clearly

erroneous. United States v. Pruden, 398 F.3d 241, 245 (3d Cir. 2005). We find no non-

frivolous argument that the District Court clearly erred.



                                              6
       In the Anders brief, defense counsel noted that he had asserted a challenge

pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), during jury selection. The District

Court inquired into the government’s reason for asserting its peremptory strike with

respect to Garcia and concluded that the reason was “legitimate.” App. at 79. We must

give “great deference” to the District Court’s findings. Batson, 476 U.S. at 98 n.21.

Having reviewed the record, any argument that this conclusion was clearly erroneous

would be frivolous.

       Any challenge to the sufficiency of the evidence would be frivolous in light of the

evidence introduced at trial. “Our review of the sufficiency of the evidence after a

conviction is ‘highly deferential.’” United States v. Hart, 273 F.3d 363, 371 (3d Cir.

2001) (quoting United States v. Helbling, 209 F.3d 226, 238 (3d Cir. 2000)). The

testimony introduced at trial included that of government witnesses, law enforcement

agents, co-conspirator Olaya, Cuartas’ post-arrest statements, and audiotapes of Cuartas’

conversations with the CI. In addition, Cuartas testified in her own defense, providing the

jury an opportunity to assess her own credibility on the issue of intent. Under these

circumstances, any challenge to the sufficiency of the evidence would be frivolous.

       Finally, we note that the jury expressly found that the conspiracy involved one

kilogram or more of heroin, and thus Cuartas was subject to a ten-year mandatory

minimum sentence. See 21 U.S.C. § 841(b)(1)(A). Because Cuartas received the lowest

possible sentence, no non-frivolous issues could be raised on appeal with respect to her



                                             7
sentence.

                                          III.

      Because we agree that there are no non-frivolous issues for Cuartas’ appeal, we

will affirm the judgment of conviction and sentence. We will grant counsel’s motion to

withdraw and deny Cuartas’ motion to appoint new counsel.




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