                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-6-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4668




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                                                       NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                       ___________

                           No. 03-4668
                           ___________

                 UNITED STATES OF AMERICA

                                  v.

                       MIGUEL MORALES,

                                       Appellant
                   ________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
           EASTERN DISTRICT OF PENNSYLVANIA

           District Court Judge: The Hon. J. Curtis Joyner
                   (District Court No. 02-cr-00326)
                             ___________

            Submitted Under Third Circuit L.A.R. 34.1(a)
                       September 28, 2004

      Before: RENDELL, FUENTES, and SMITH, Circuit Judges.

                 (Opinion Filed: October 6, 2004)
                          ___________




                    _______________________

                    OPINION OF THE COURT
                    _______________________
FUENTES, Circuit Judge:

       On August 25, 2003, before the District Court of the Eastern District of Pennsylvania,

Miguel Morales entered a plea of guilty to distributing heroin and aiding and abetting the

distribution of heroin, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, respectively.

On November 25, 2003, Morales was sentenced to serve 46 months in prison followed by 3

years of supervised release, and to pay a one hundred dollar assessment and a one thousand

dollar fine. Morales, through his attorney, filed a timely notice of appeal but has not

submitted an opening brief on appeal. His counsel, L. Felipe Restrepo, has filed a brief in

accordance with Anders v. California, 386 U.S. 738 (1967), asserting that there are no

nonfrivolous issues from which to appeal, and further moving that he be permitted to

withdraw as Morales’ counsel. For the reasons set forth below, we agree that any appeal by

Morales would be without merit. Accordingly, this Court will grant counsel’s request to

withdraw, and will affirm the judgment and sentence of the District Court.

                                              I.

       As we write solely for the parties, our recitation of the facts will be limited to those

necessary to our determination. Miguel Morales is a 47-year-old citizen of the Dominican

Republic. In or around March 1999, an informant working with the U.S. Drug Enforcement

Administration made contact with Morales’ co-defendant, Justo Frias. The informant

arranged to purchase heroin from Frias. After obtaining a sample from Frias, the informant

returned to make a larger purchase. Frias told the informant that he received the heroin from



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Morales. The informant asked Frias for a lower price, and was taken to meet Morales to

negotiate. Morales refused to negotiate, and the informant purchased the heroin for the

original price. Both Morales and Frias were arrested and indicted for, among other things,

distributing heroin and aiding and abetting the distribution of heroin.

       On August 25, 2003, Morales pled guilty to count three of the indictment, distributing

heroin and aiding and abetting the distribution of heroin. Pursuant to a written plea

agreement, the remaining counts were dismissed and Morales was sentenced to a term of 46

months in prison.

       Morales filed a notice of appeal on December 8, 2003. Thereafter, L. Felipe Restrepo,

counsel for Morales, filed a brief in accordance with Anders v. California, 386 U.S. 738

(1967) and a Motion to Withdraw as Counsel. Morales has not filed a brief on his own

behalf, despite having been informed of his right to file a formal or informal brief. See

Clerk’s Office Letter (Feb. 17, 2004).

                                             II.

       In Anders, the Supreme Court suggested that “if, after a ‘conscientious examination’

of the record, counsel found no nonfrivolous issues for appeal, he or she could submit a brief

‘referring to anything in the record that might arguably support the appeal.’” United States

v. Marvin, 211 F.3d 778, 779 (3d Cir. 2000) (quoting Anders, 386 U.S. at 744). In Marvin,

we expanded upon the Anders requirements, following the Seventh Circuit’s teachings in

Unites States v. Tabb, 125 F.3d 583 (7th Cir. 1997), by adopting the notion of “the dual



                                             -3-
duties of counsel in the Anders situation.” Marvin, 211 F.3d at 780.

       The dual duties are: “(1) to satisfy the court that he or she has thoroughly scoured the

record in search of appealable issues; and (2) to explain why the issues are frivolous.” Id.

Similarly, this Court must serve two roles: “(1) whether counsel adequately fulfilled the

[Third Circuit Local Appellate Rule 109.2(a)’s] requirements 1 ; 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).

       In arguing that there are no nonfrivolous issues for appeal, counsel points to three

areas in which issues possibly may be raised: the District Court’s jurisdiction to accept the

guilty plea, the validity of the guilty plea in light of constitutional and statutory standards,

and the legality of the actual sentence imposed.2 After an independent examination of the


  1
    Local Appellate Rule 109.2(a) states:
      Where, upon review of the district court record, trial counsel is persuaded
      that the appeal presents no issue of even arguable merit, trial counsel may
      file a motion to withdraw and supporting brief pursuant to Anders v.
      California, 386 U.S. 738 (1967), which shall be served upon the appellant
      and the United States. The United States shall file a brief in response.
      Appellant may also file a brief in response pro se. After all briefs have been
      filed, the clerk will refer the case to a merits panel. If the panel agrees that
      the appeal is without merit, it will grant trial counsel's Anders motion, and
      dispose of the appeal without appointing new counsel. If the panel finds
      arguable merit to the appeal, it will discharge current counsel, appoint
      substitute counsel, restore the case to the calendar, and order supplemental
      briefing.
Third Circuit L.A.R. 109.2(a).
  2
   Counsel notes that, unless expressly provided otherwise, all other possible issues for
appeal can be waived through a valid plea agreement, and that no exceptions were
provided for here. See App. 26-27 (Morales waiving his general right to appeal).

                                              -4-
record, including the transcript of the plea colloquy, the Pre-Sentencing Report and the

sentencing, and counsel’s Anders brief, it is clear that counsel has satisfied his Anders burden

and that no nonfrivolous issues from which to appeal exist.

                              A. Jurisdiction to Accept the Plea

       Counsel easily disposes of any possible jurisdictional defect, noting that the crimes

charged and pled to are federal crimes and that 18 U.S.C § 3231 bestows U.S. district courts

with “original jurisdiction, exclusive of the courts of the States, of all offenses against the

laws of the United States.”

                                   B. Validity of the Plea

       The Supreme Court set forth some requirements for a valid plea in Boykin v.

Alabama, 395 U.S. 238 (1969), the compliance with which establishes a voluntary and

knowing waiver of the constitutional rights implicated by a plea. Federal Rule of Criminal

Procedure 11 incorporates and expands upon these requirements, creating a list of

information that a judge must impart to the defendant. See Fed. R. Crim. P. 11. In essence,

the judge must be satisfied that a factual basis exists for the taking of the plea and that the

defendant is aware of the nature of the charges against him and the consequences of entering

the plea. Id. Here, all of those requirements were satisfied. See App. 19, 22, 28, 30-32, 36-

36. Thus, Morales’ plea entry met the relevant constitutional and statutory standards, and is

valid, leaving no discernable avenues for appeal with respect to the plea.




                                              -5-
                             C. The Legality of the Sentence

       Counsel explains in his brief that Morales’ sentence complied with the Federal

Sentencing Guidelines. The base offense level was 26, given the stipulated to quantity of

heroin involved–149.75 grams. Although a 2 point increase was recommended in the pre-

sentence report, a defense objection to the increase was sustained. The deduction for the

acceptance of responsibility and the elimination of supervisory points resulted in a total

deduction of 4 points, giving a final offense level of 21. This yielded a guideline range of

37-46 months incarceration; Morales was sentenced to the upper bound of that range. Given

his lack of any prior adult convictions or juvenile adjudications, Morales received no upward

adjustment of sentence due to criminal history. The fines and the supervised release are

specifically authorized by statute. See 18 U.S.C. § 3013 (mandating the special assessment);

18 U.S.C. § 3571 (authorizing the fine); 21 U.S.C. § 841(b) (authorizing the supervised

release). Although counsel’s Anders brief was submitted prior to the Supreme Court’s

ruling in Blakely v. Washington, 124 S. Ct. 2531 (2004), we find that, regardless of that

case’s impact on the Sentencing Guidelines, Morales’ sentence was valid, given that no

upward departures were made from the determined range. See United States v. Coplin, No.

03-1570, 2004 W L 1790169, at *3 (3d Cir. Aug. 9, 2004).

                                            III.

       For the reasons stated above, we agree with counsel that Morales has no nonfrivolous

issues for appeal. Accordingly, we grant counsel’s Motion to Withdraw and affirm M orales’



                                             -6-
conviction and sentence. Further, we find that the issues discussed herein lack merit for

purposes of counsel filing a petition for writ of certiorari in the U.S. Supreme Court. See

Third Circuit L.A.R. 109.2(b) and (c); see also Austin v. United States, 513 U.S. 5 (1994).




                                            -7-
