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


3-11-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-2233




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Recommended Citation
"USA v. Amparo" (2003). 2003 Decisions. Paper 748.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/748


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                                                                  NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                        No. 02-2233


                             UNITED STATES OF AMERICA

                                             v.

                           FRANCISCO HERRERA AMPARO
                             a/k/a FRANCISCO HERRERA
                                     a/k/a CHICO

                                 Francisco Herrera Amparo,
                                                             Appellant


                       On Appeal from the United States District Court
                            for Eastern District of Pennsylvania
                             (D.C. Crim. No. 01-cr-00442-2)
                           District Judge: Hon. Jay C. Waldman


                         Submitted Under Third Circuit LAR 34.1(a)
                                     March 10, 2003

            Before: SLOVITER, NYGAARD, and ALARCÓN*, Circuit Judges

                                  (Filed: March 11, 2003)


                               OPINION OF THE COURT




*   Hon. Arthur L. Alarcón, Senior Judge, United States Court of Appeals for the Ninth
    Circuit, sitting by designation.
SLOVITER, Circuit Judge.

        Appellant Francisco Herrera Amparo, who was one of four defendants charged in a

four-count indictment, pled guilty on October 16, 2001 pursuant to a plea agreement to

conspiracy to distribute over 50 grams of cocaine base (“crack”) and one kilogram of

heroin, in violation of 21 U.S.C. § 846, and to possession with intent to distribute within

1,000 feet of a school, in violation of 21 U.S.C. § 860. He stipulated to a base offense

level of 37. Amparo was credited with a three level reduction because of his acceptance of

responsibility pursuant to U.S.S.G. §§ 3E1.1(a) and (b). He further received a two point

reduction pursuant to U.S.S.G. § 5C1.2 when the Sentencing Judge found that he had not

played a significant supervisory role in the offense. The Sentencing Judge also decided to

grant a government motion for a downward departure, based on Amparo’s cooperation with

the government pursuant to U.S.S.G. § 5K1.1. Amparo was sentenced to 60 months

imprisonment, which is substantially below the otherwise applicable guideline. He was

further sentenced to 60 months of supervised release pursuant to 21 U.S.C. §§ 846 and

860, and 18 U.S.C. § 2. Finally, the judge imposed a mandatory special assessment of

$100, pursuant to 18 U.S.C. § 3013. The judgment of conviction was entered on April 26,

2002. Amparo filed a timely appeal.

        Amparo’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967). Under Anders, if counsel is convinced after conscientious investigation that the

appeal is frivolous, counsel may properly ask to withdraw. Id. at 741 (citation omitted).

Anders also requires that counsel’s brief cite any matters that may be arguably appealable.

                                                     2
Id. at 741; United States v. Tannis, 942 F.2d 196, 197 (3rd Cir. 1991).

        In this case, the arguably appealable issues include whether the District Court had

jurisdiction to accept Amparo’s guilty plea, whether the plea was valid in light of

controlling constitutional and statutory standards, whether the District Court imposed a

legal sentence, and whether the extent of the District Court’s downward departure is subject

to appellate review.

        Amparo received a copy of his defense counsel’s brief, and was given time to raise

any non-frivolous arguments in a pro se brief. Anders, 386 U.S. at 744; 3rd Cir. LAR

109.2(a) (2000). However, Amparo has not filed a pro se brief in support of his appeal.

        The District Court patently has jurisdiction over the federal crimes with which

Amparo was charged and had the authority to accept Amparo’s guilty plea. 18 U.S.C. §

3231.

        Amparo’s plea was valid in light of controlling constitutional and statutory standards.

Pursuant to Boykin v. Alabama, 395 U.S. 238, the District Court conducted a detailed

colloquy, through an interpreter, before accepting the guilty plea. Amparo was questioned

about his ability to understand the proceedings. The record of the plea hearing shows that

the District Court, with the assistance of an interpreter, fully and adequately informed

Amparo of his right to a jury trial, the charges against him, and the maximum sentence for

his offenses. Furthermore, he was advised of his privilege against self-incrimination and

his right to confront his accusers. With this knowledge, Amparo agreed with the

government’s factual report, stated his satisfaction with his counsel, and then voluntarily

                                                     3
entered a plea of guilty to the charges in the indictment.

        From our review of the record, we conclude that Amparo knowingly and voluntarily

pled guilty. Moreover, we find no non-frivolous issue for appeal in the sentencing

discussed above. We have no jurisdiction to entertain any contention by Amparo related to

the extent of the District Court’s downward departure. Whether to depart at all was subject

to the District Court’s discretion, and we have held that we have “[no] jurisdiction to hear an

appeal by the defendant where there has been some departure.” United States v. Gaskill,

991 F.2d 82, 84 (3d Cir. 1993).

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




TO CLERK OF COURT:

        Please file the foregoing opinion.




                           /s/ Dolores K. Sloviter
                         Circuit Judge
