                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-20-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1597




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NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                              Case No: 06-1597

                       UNITED STATES OF AMERICA

                                        v.

                                ROY DEPACK
                          a/k/a ROY J. DEPACK, JR.

                                    Roy Depack,
                                      Appellant



                On Appeal from the United States District Court
                           for the District of New Jersey
                          District Court No. 04-CR-0599
                District Judge: The Honorable Faith S. Hochberg


               Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                              February 12, 2007

                 Before: SMITH and FISHER, Circuit Judges,
                       and DIAMOND, District Judge*


                          (Filed: February 20, 2007 )




      *
       The Honorable Gustave Diamond, Senior District Judge for the United
States District Court for the Western District of Pennsylvania, sitting by
designation.
                                       1
                                     OPINION


SMITH, Circuit Judge.

      On August 26, 2004, a grand jury returned an indictment against Roy

DePack, charging him with four counts of criminal conduct. Counts One and Two

alleged that DePack committed bank fraud in violation of 18 U.S.C. § 1344 and 18

U.S.C. § 2. Count Three alleged that he made counterfeit obligations and

securities in violation of 18 U.S.C. § 471. Count Four charged that he attempted

to sell counterfeit obligations in violation of 18 U.S.C. § 472. DePack initially

pleaded not guilty and moved to suppress certain evidence, including several

thousand dollars in counterfeit obligations. These items had been seized from an

upstairs apartment he occupied in his aunt’s house. The United States District

Court for the District of New Jersey denied the motion, finding that his aunt

reasonably believed that DePack had abandoned the premises and that his aunt’s

consent justified the warrantless search.

      Thereafter, on March 2, 2005, after executing a plea agreement which

contained a waiver of his appellate rights, DePack pleaded guilty as charged in the

indictment. On February 7, 2006, the District Court sentenced DePack to, inter

alia, 70 months of imprisonment on each count, to be served concurrently.




                                            2
      DePack filed a timely notice of appeal.1 His counsel concluded that there

were no non-frivolous issues to appeal and filed a motion to withdraw pursuant to

Anders v. California, 386 U.S. 738 (1967), together with a supporting brief. 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.

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

      Consistent with this Court’s local rule, the Anders brief was served on

DePack and he was advised that he could file an informal response brief. See

Third Circuit L.A.R. 109.2(a). In his various submissions, DePack disputed his

counsel’s arguments on several points and asked for bail. After considering the



      1
       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We
exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a). See United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).
                                          3
arguments presented by counsel and DePack, the prosecution agreed with counsel

that there were no non-frivolous issues to raise on appeal.

      We have thoroughly reviewed the record in this appeal and we conclude that

defense counsel has satisfied Youla’s requirements. He compiled an appendix

with the salient portions of the record, set forth the facts of the case, including the

procedural and substantive history of the case, identified six possible issues for

appeal, and explained why each issue was frivolous.

      We agree with defense counsel that DePack’s guilty plea limits the issues he

may raise on appeal to claiming that he had a constitutional right not to be haled

into court on a charge, to challenging the validity of his guilty plea, and to

attacking the legality of his sentence. See United States v. Broce, 488 U.S. 563,

574-76 (1989); 18 U.S.C. § 3742(a); Tollett v. Henderson, 411 U.S. 258, 267

(1973); United States v. Hawthorne, 532 F.2d 318, 322 (3d Cir. 1976). Contrary

to DePack’s contention, we find that there was an adequate factual basis for

Depack’s plea to each count in the indictment. Our review of the plea colloquy

demonstrates that the District Court complied with the mandates of Federal Rule

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

Accordingly, we conclude that the District Court did not err in finding that

DePack’s guilty plea was knowing and voluntary. Because DePack’s guilty plea

did not offend the United States Constitution, we find that he waived any


                                           4
challenge he may have had to the District Court’s order granting the motion to

suppress. Tollett, 411 U.S. at 267; Hawthorne, 532 F.2d at 322.

      We recognize that DePack moved to withdraw his guilty plea. We find no

abuse of discretion by the District Court in denying the motion, however, as the

District Court appropriately noted that DePack did not meaningfully assert his

innocence. See United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003) (pointing

out that the District Court must evaluate, inter alia, whether the defendant asserted

his innocence). Indeed, at the hearing on the motion, DePack acknowledged that

he was guilty of the charges.

      DePack’s guilty plea does not preclude him from challenging the legality of

his sentence. He contends that the District Court erred in calculating his

Guidelines range because it failed to give him three points for his acceptance of

responsibility. Even though DePack moved to withdraw his guilty plea, the

District Court granted him a one point reduction for his guilty plea. We fail to

find any error by the District Court in this assessment. Nor do we find any error

by the District Court in its exercise of discretion in sentencing him under 18

U.S.C. § 3553(a).

      Defense counsel also appropriately points out that any claims by DePack of

ineffective assistance of counsel should not be raised in this direct appeal. As we

observed in United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003), it is


                                          5
preferable to review ineffectiveness claims on collateral review. Id. (citing

Massaro v. United States, 538 U.S. 500 (2003)). For that reason, we will not

address DePack’s claims of ineffectiveness by both counsel at this juncture.

      In sum, after conducting our own independent review, we find no non-

frivolous issues to raise on appeal. Moreover, we cannot ignore the fact that

DePack’s plea agreement contained a waiver of his appellate rights and that he

acknowledged during his plea colloquy that he understood that he was waiving his

right to a direct appeal. In United States v. Khattak, 273 F.3d 557, 562 (3d Cir.

2001), we declared that “waivers of appeals, if entered into knowingly and

voluntarily, are valid.” Thus, his appellate waiver provides an additional basis for

finding that this appeal lacks merit. Accordingly, we will grant counsel’s motion

to withdraw and we will affirm the February 9, 2006 judgment of the District

Court. We further certify that the issues presented in this appeal lack legal merit

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

Supreme Court. Third Cir. L.A.R 109.2(b).




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