                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-5-2002

USA v. Sosa-Rodriguez
Precedential or Non-Precedential:

Docket 1-1218




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Recommended Citation
"USA v. Sosa-Rodriguez" (2002). 2002 Decisions. Paper 96.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/96


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                                                       NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                ___________

                                No. 01-1218
                                ___________


                      UNITED STATES OF AMERICA

                                   v.

                        MIGUEL SOSA-RODRIGUEZ,
                          a/k/a MIGUEL SOSA

                                              Miguel Sosa-Rodriguez,
                                                                 Appellant

         _______________________________________________

         On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
 D.C. Criminal Nos. 99-cr-00450-3, 00-cr-00551-1 & 00-cr-00552-1
                  (Honorable Harvey Bartle, III)
                       ___________________


         Submitted Pursuant to Third Circuit LAR 34.1(a)
                        December 13, 2001

           Before:    SCIRICA and BARRY, Circuit Judges,
                     and MUNLEY, District Judge*




     *The Honorable James M. Munley, United States District Judge for the
Middle
District of Pennsylvania, sitting by designation.

                      (Filed:    February 5, 2002)

                          __________________

                          OPINION OF THE COURT
                           __________________


PER CURIAM.
     Miguel Sosa-Rodriguez was sentenced to a ten-year prison term
following his
guilty plea to conspiracy to distribute marijuana, illegal reentry after
deportation, and
money laundering. He appeals his sentence. We will affirm.
     On January 28, 2000, defendant Sosa-Rodriguez pled guilty to an
indictment for
conspiracy to distribute more than one thousand kilograms of marijuana, in
violation of
21 U.S.C.    846. On October 26, 2000, Sosa-Rodriguez pled guilty to
illegal reentry
following deportation, in violation of 8 U.S.C.   1326, and money
laundering, in violation
of 18 U.S.C.    1956(h). The cases were consolidated for purposes of
sentencing.
     On June 26, 2000 after the drug conspiracy plea, but before
sentencing the
United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466
(2000), in
which it announced the rule that any fact that raises the maximum
statutory penalty is an
element of the crime that must be proved to the fact finder beyond a
reasonable doubt.
     On January 22, 2001, Sosa-Rodriguez was sentenced. The District
Court granted
the government's motion to depart from the sentence specified by the
United States
Sentencing Guidelines (under which he likely would have received a life
sentence) for
substantial cooperation, under United States Sentencing Guidelines
5K1.1. Defendant
was sentenced to ten years in prison.
     Prior to entering the judgment of sentence, the District Court
informed defendant
of the effect of the Apprendi decision. Because the quantity of marijuana
distributed
changed the maximum sentence, the government would be required, if the
case went to
trial, to establish beyond a reasonable doubt that the conspiracy involved
more than one
thousand kilograms of marijuana. At the time he entered his plea, he
would not have
been aware of this element of the government's trial burden. The District
Court offered
defendant an opportunity to withdraw his plea in light of Apprendi.
Defendant declined
to do so.
     Following his sentencing, defendant filed a notice of appeal. His
court-appointed
attorney subsequently filed an Anders brief, in which he stated his view
that there were no
non-frivolous issues for appeal, following the guidelines prescribed in
Anders v.
California, 386 U.S. 738 (1967).
     There is no basis on which to conclude the District Court lacked
jurisdiction, the
plea was inadequate, or the sentence was beyond the authority of the
District Court. The
only possible non-frivolous issue centers on the effect of Apprendi.
     Because defendant was informed of the effect of Apprendi, and was
given the
opportunity to withdraw his plea in light of it, there can be no argument
that his plea was
defective because of a lack of knowledge of the burden faced by the
government at trial.
     In his notice of appeal, defendant states that counsel was
ineffective. Except
where the ineffectiveness of counsel is plain on the face of the record,
see United States v.
Headley, 923 F.2d 1079, 1083 (3d Cir. 1991), "the proper avenue for
pursuing such
claims is through a collateral proceeding in which the factual basis for
the claim may be
developed." United States v. Theodoropoulos, 866 F.2d 587, 598 (3d Cir.
1989),
overruled in non-relevant part, United States v. Price, 76 F.3d 526 (3rd
Cir. 1996).
     The ineffectiveness is not plain on the face of the record.
Therefore, any challenge
to the effectiveness of counsel at the time of sentencing must be made in
a collateral
proceeding under 28 U.S.C.   2255.
     Accordingly, we will affirm the judgment of sentence.
TO THE CLERK:

         Please file the foregoing opinion.




                                       Circuit Judge

DATED:
