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


3-6-2009

USA v. Rodney Hutchinson
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3719




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Recommended Citation
"USA v. Rodney Hutchinson" (2009). 2009 Decisions. Paper 1763.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1763


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                                                        NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                              No. 08-3719
                               ________


                   UNITED STATES OF AMERICA

                                   v.

                      RODNEY HUTCHINSON,
                                    Appellant




             On Appeal from the United States District Court
                 for the Middle District of Pennsylvania
                      (D.C. No. 1-06-cr-00173-001)
                 District Judge: Honorable Yvette Kane




               Submitted Under Third Circuit LAR 34.1(a)
                            March 5, 2009

    Before: SLOVITER and HARDIMAN, Circuit Judges, and
                 POLLAK * , District Judge

                         (Filed:March 6, 2009)

                                  ____

                               OPINION



         *
          Hon. Louis H. Pollak, Senior Judge, United States District
  Court for the Eastern District of Pennsylvania, sitting by
  designation.
SLOVITER, Circuit Judge.

       Rodney Hutchinson, who pled guilty to one count of conspiracy to distribute

marijuana in violation of 21 U.S.C. § 846 and one count of conspiracy to commit money

laundering in violation of 18 U.S.C. § 1956(h), was sentenced to 210 months

imprisonment.1 His counsel filed a timely notice of appeal but also 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, 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) (citation omitted). “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).

                                            I.

       Hutchinson was the leader of what the District Court characterized as “a very

serious, far-reaching drug conspiracy with a record amount of drugs and cash.” App. at

224. He recruited and employed several couriers to transport these drugs from his



                   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 and 18 U.S.C. § 3742.

                                             2
supplier, co-defendant Abraham Perez, in Arizona to Harrisburg and other locations on

the east coast. Some of the couriers transported money back to Arizona.

       In May 2006, Hutchinson was arrested in Riverside, California, following a

warrantless search of his vehicle during a traffic stop. California Highway Patrol Officer

Gilbert Carrera, who had been advised that Hutchinson would be driving through his

patrol area and was suspected to be transporting drugs, observed Hutchinson fail to signal

during an abrupt turn, a violation of the state vehicle code. He signaled Hutchinson to

stop and exit the car which Hutchinson initially failed to do. After he did stop, instead of

showing his license and registration as directed, Hutchinson simply stuck his hands out of

the car window, with shaking hands throughout the encounter.

       In light of Hutchinson’s conduct following the traffic stop, the tip that Hutchinson

was transporting drugs, and his belief that he had observed marijuana debris in the car

(not credited by the District Court), Carrera retrieved his drug-detecting canine to conduct

an exterior sniff of Hutchinson’s car. The dog, of its own accord, jumped through an

open window in the car and alerted on a duffle bag in the back seat. Carrera proceeded to

open the duffle bag and discovered that it contained a large quantity of marijuana. A

subsequent search of the car yielded two more duffle bags of marijuana; in total, the

search uncovered approximately ninety-nine kilograms of marijuana.

       Hutchinson was eventually charged in a second superseding indictment with, inter

alia, one count of conspiracy to distribute marijuana and one count of conspiracy to



                                             3
commit money laundering. The District Court denied Hutchinson’s motion to suppress

the evidence from the traffic stop. United States v. Hutchinson, 471 F. Supp. 2d 497, 511

(M.D. Pa. 2007).

       Hutchinson subsequently entered a conditional guilty plea to both counts, reserving

the right to appeal the District Court’s suppression ruling. At the same time, in light of

Hutchinson’s willingness to admit only that the drug conspiracy involved fifty or more

kilograms, the District Court approved the parties’ agreement to delete from the second

superseding indictment the allegation that the drug conspiracy in count one involved

1,000 or more kilograms of marijuana.

       Prior to sentencing, Hutchinson and the government reached an agreement on

several stipulations, all of which the District Court accepted, including most importantly

that the drug conspiracy involved more than 1,000 but less than 3,000 kilograms of

marijuana. In light of these stipulations, the District Court correctly calculated that the

Guidelines range was 210-262 months imprisonment. After it rejected Hutchinson’s

argument for a downward variance, the District Court sentenced Hutchinson to 210

months imprisonment (i.e., at the bottom of the Guidelines range).

       Hutchinson filed a timely notice of appeal. After his counsel filed an Anders brief,

Hutchinson filed a pro se brief in this court. We have reviewed the record to determine

whether the appeal is “wholly frivolous,” Penson v. Ohio, 488 U.S. 75, 80 (1988), and

agree with counsel that it is.



                                              4
                                            II.

       Although Hutchinson’s pro se brief continues to challenge the District Court’s

denial of his motion to suppress the drug evidence (ninety-nine kilograms of marijuana)

from the Riverside traffic stop and warrantless search, that issue is moot because

Hutchinson ultimately stipulated that the amount of marijuana involved in the conspiracy

was 1,000 to 3,000 kilograms.

       We thus turn to the plea colloquy to ensure that Hutchinson entered his guilty plea

voluntarily and knowingly. We conclude that he did. The Court placed Hutchinson under

oath and informed him of the rights that he would waive by entering a guilty plea and the

fact that he would waive them, the nature of the charges, the maximum and minimum

statutory penalties, including imprisonment, fines, forfeiture and special assessments, and

the Court’s obligation to sentence him under the Guidelines and the sentencing factors

contained in 18 U.S.C. § 3553(a). The Court also questioned Hutchinson to ensure that

the plea was voluntary and determined that there was a factual basis for the plea.

       We also conclude that there are no nonfrivolous issues as to an appeal of

Hutchinson’s sentence. Following completion of the presentence report, the parties

entered stipulations as to the weight of marijuana involved in the drug conspiracy,

Hutchinson’s leadership role in the conspiracy, enhancements for possession of a firearm

and money laundering, and a reduction for acceptance of responsibility. Upon the basis

of those stipulations, which the District Court accepted, and the presentence report, the



                                             5
Court determined that Hutchinson had an offense level of 37 and criminal history

category of I, for a sentencing range of 210-262 months imprisonment. The Court then

heard argument from the parties on Hutchinson’s request for a downward variance,

including extensive argument on Hutchinson’s primary contention that a within-

Guidelines sentence would create a sentencing disparity with his codefendants. It

ultimately determined that a sentence at the bottom of the Guidelines range was

appropriate in light of Hutchinson’s culpability in the offense, the seriousness of the

offense, the fact that Hutchinson (unlike many of his codefendants) did not cooperate

with the government, and the need for deterrence.

       Finally, in his pro se brief, Hutchinson contends that the District Court erred when

it (1) accepted the parties’ agreement to delete from the second superseding indictment

the allegation that the drug conspiracy in count one involved 1,000 or more kilograms of

marijuana, in light of Hutchinson’s admission at his plea colloquy that the drug

conspiracy involved only fifty or more kilograms, and (2) subsequently sentenced

Hutchinson, as stipulated by the parties, under the Guidelines range applicable for

offenses involving at least 1,000 but less than 3,000 kilograms of marijuana. We reject

Hutchinson’s argument that this amendment to the indictment violated his Fifth

Amendment rights because the amount of marijuana involved in the conspiracy was not

an essential element of the offense charged in count one, and therefore the government’s

allegation of a specific amount in the indictment was properly disregarded as surplusage.



                                              6
See United States v. Iglesias, 535 F.3d 150, 161 n.4 (3d Cir. 2008). We also reject

Hutchinson’s argument that the District Court could not make findings and sentence him

based on a quantity of drugs greater than that to which he admitted during his plea. See

United States v. Grier, 475 F.3d 556, 562 (3d Cir. 2007) (en banc). Thus, these issues are

frivolous as well.

                                           III.

       For the reasons set forth, we will affirm the judgment of conviction and sentence,

and we will grant counsel’s motion to withdraw.
