                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-2-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2844




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Recommended Citation
"USA v. Leonor" (2005). 2005 Decisions. Paper 1075.
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                                                             NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                   Case No: 03-2844

                           UNITED STATES OF AMERICA

                                             v.

                          RAYMOND ANGLADA LEONOR,

                                           Appellant

                            __________________________

                    On appeal from the United States District Court
                              for the District of New Jersey
                   District Judge: The Honorable Jerome B. Simandle
                              District Court No. 03-CR-152
                             __________________________

                     Submitted Pursuant to Third Circuit LAR 34.1
                                    June 18, 2004

               Before: ALITO, SMITH and WALLACE, Circuit Judges*

                                 (Filed: June 2, 2005)
                                 _________________

                              OPINION OF THE COURT
                                 _________________

SMITH, Circuit Judge.

      On March 4, 2003, Raymond Leonor pled guilty to a single count information



  *
   The Honorable J. Clifford Wallace, Senior United States Circuit Judge for the Ninth
Circuit Court of Appeals, sitting by designation.
charging him with knowingly and intentionally possessing more than five hundred grams

of cocaine with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(B). At sentencing on June 13, 2003, the District Court determined that

Leonor’s guideline range was 51 to 63 months of incarceration, which was compressed to

60 to 63 months as a result of the mandatory statutory minimum of five years given the

nature of the offense. Although Leonor’s counsel raised the possibility of moving for a

“safety valve” downward adjustment pursuant to 18 U.S.C. § 3553(f)(1)-(5), a recent

ruling by this Court foreclosed that possibility. See United States v. Boddie, 318 F.3d 491,

494 (3d Cir. Jan. 28, 2003). The District Court sentenced Leonor to 60 months

imprisonment and a four-year term of supervised release.

       After filing a timely notice of appeal, Leonor’s counsel moved to withdraw

pursuant to Anders v. California, 386 U.S. 738 (1967).1 In Anders, the Supreme Court

held that the “constitutional requirement of substantial equality and fair process”

necessitates that appellant’s counsel vigorously act as an advocate for the defendant. Id.

at 744. Thus, counsel’s

       role as advocate requires that he support his client’s appeal to the best of his
       ability. Of course, if counsel finds his case to be wholly frivolous, after a
       conscientious examination of it, he should so advise the court and request
       permission to withdraw. That request must, however, be accompanied by a
       brief referring to anything in the record that might arguably support the
       appeal.



  1
    Counsel advised Leonor of his right to file an informal brief pursuant to 3d Cir.
L.A.R. 109.2(a), but Leonor chose not to do so.

                                              2
Id. In United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001), we reiterated that an

Anders brief must demonstrate that counsel has “thoroughly examined the record in

search of appealable issues,” and it must “explain why the issues are frivolous.” Thus,

our inquiry is twofold: (1) whether counsel adequately fulfilled the requirements of

Anders; and (2) “whether an independent review of the record presents any nonfrivolous

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

Anders, 386 U.S. at 744 (explaining that the court must proceed, “after a full examination

of all the proceedings, to decide whether the case is wholly frivolous”). If review fails to

reveal any non-frivolous issues, the Court “may grant counsel’s request to withdraw and

dismiss the appeal.” Anders, 386 U.S. at 744.

       We conclude that counsel fulfilled the requirements of Anders with respect to

Leonor’s conviction.2 Counsel asserted that there were no deficiencies with regard to

Leonor’s guilty plea colloquy. Our review of the appended plea agreement and colloquy

verifies that Leonor’s plea complied with both the requirements of Federal Rule of

Criminal Procedure 11 and Boykin v. Alabama, 395 U.S. 238 (1969).

       Our own independent review of the record reveals, however, that Leonor’s

sentence was imposed before the Supreme Court’s decision in United States v. Booker,

125 S.Ct. 738 (2005). At first blush, this suggests that there may be a possibility that




  2
   The District Court had jurisdiction over this federal criminal offense pursuant to 18
U.S.C. § 3231. We exercise appellate jurisdiction under 18 U.S.C. § 3742(a).

                                              3
Leonor might benefit if he were resentenced under an advisory sentencing scheme.

Leonor, however, was sentenced to the mandatory minimum of sixty months, see 21

U.S.C. § 841(b)(1)(B), and a remand for resentencing cannot result in a lighter sentence.

Accordingly, there is no basis for vacating Leonor’s sentence. Indeed, Leonor may have

anticipated as much as he did not respond to this Court’s inquiry regarding the

applicability of Booker.

       Accordingly, we will grant counsel’s motion to withdraw and we will affirm

Leonor’s conviction and sentence. We certify that the issues presented in the appeal lack

legal merit and thus do not require the filing of a petition for writ of certiorari with the

Supreme Court. 3d Cir. LAR 109.2(b).
