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


8-9-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1570




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                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 03-1570


                         UNITED STATES OF AMERICA

                                          v.

                                JEFFREY COPLIN,

                                                Appellant


                  On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                            (Dist. Ct. No. 00-cr-00745)
                    District Judge: Honorable J. Curtis Joyner



                    Submitted Under Third Circuit LAR 34.1(a)
                                 June 24, 2004

          Before: NYGAARD, McKEE and CHERTOFF, Circuit Judges.

                              (Filed: August 9, 2004 )



                                      OPINION


CHERTOFF, Circuit Judge.

     Jeffrey Coplin appeals his conviction for two counts of distribution of cocaine

                                          1
base, in violation of 21 U.S.C. § 841(a)(1), and two counts of distribution of cocaine

base within 1,000 feet of a public playground, in violation of 21 U.S.C. § 860. Coplin

pled guilty to all counts. The District Court sentenced Coplin to concurrent sentences of

20 years imprisonment and 10 years supervised release, the mandatory minimum where a

defendant has previously been convicted for a felony drug offense. See 21 U.S.C. §

841.1

        Attorney Wayne R. Maynard filed a motion to withdraw as counsel for Coplin. In

support of the motion to withdraw, Maynard has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967) and Third Circuit Local Appellate Rule (L.A.R.) 109.2(a)

in which he maintains that there are no nonfrivolous grounds for an appeal. In addition,

Coplin has filed a pro se brief, in accordance with L.A.R. 109.2(a). For the reasons

stated below, we will affirm the District Court’s judgment and grant the motion to

withdraw.




        1
          This provision provides, in pertinent part: “If any person commits such a
violation after a prior conviction for a felony drug offense has become final, such person
shall be sentenced to a term of imprisonment which may not be less than 20 years and not
more than life imprisonment . . . . [I]f there was such a prior conviction, impose a term of
supervised release of at least 10 years in addition to such term of imprisonment.” 21
U.S.C. § 841.
       21 U.S.C. § 860 incorporates the mandatory minimums set forth in 21 U.S.C. §
841. See 21 U.S.C. § 860(a), (b) (“Except to the extent a greater minimum sentence is
otherwise provided by section 841(b) of this title, a person shall be sentenced under this
subsection . . . .”). Moreover, as noted in the Presentence Investigative Report (PSR), the
penalties for violation of 21 U.S.C. § 841 and 21 U.S.C. § 860 merge and do not receive
separate sentences.
                                             2
                                              I.

       This Court’s inquiry when counsel submits an Anders brief is twofold: (1)

whether Counsel adequately fulfilled L.A.R. 109.2(a); 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 order for counsel to discharge his duty under the first prong,

the brief must “(1) . . . satisfy the court that counsel has thoroughly examined the record

in search of appealable issues, and (2) . . . explain why the issues are frivolous.” Id. at

300. “Where the Anders brief initially appears adequate on its face, the proper course ‘is

for the appellate court to be guided in reviewing the record by the Anders brief itself.’”

Id. at 301 (quoting United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996)).

       We conclude that the brief in this case is adequate, and therefore it guides our

independent review of the record. See Youla, 241 F.3d at 301. Maynard raises the

following seven issues in his brief: (1) Was the Appellant’s guilty plea knowingly and

voluntarily entered?; (2) Did the District Court commit an abuse of discretion in denying

the Appellant’s pre-sentence motion to withdraw his guilty plea?; (3) Did the

Government violate the law in not entering a plea agreement with the Appellant that

called to make a motion pursuant to §5K1.1 of the Sentencing Guidelines?;2 (4) Is


       2
         This provision provides, in pertinent part: “Upon motion of the government
stating that the defendant has provided substantial assistance in the investigation or
prosecution of another person who has committed an offense, the court may depart from
the guidelines.” U.S.S.G. § 5K1.1.


                                              3
resentencing required because counsel allegedly did not review the pre-sentence report

with the Appellant and because the pre-sentence report contained an erroneous criminal

history?; (5) Did the District Court err in not crediting the Appellant for accepting

responsibility pursuant to § 3E1.1 of the Sentencing Guidelines?; (6) Is resentencing

required on account of sentencing entrapment on the part of the government?; and (7)

Are 21 U.S.C. § 841(b)(1)(A) and (B) facially unconstitutional? Notably, Coplin appears

to have specifically advised Maynard of the issues he wanted raised on appeal.3

       Coplin presents almost the identical issues in his pro se brief.4 The only

argument that appears to be distinct is his claim that he was the victim of selective

prosecution. After reviewing the record, we agree with counsel that there are no

nonfrivolous grounds for appeal.



                                             II.

       First, Judge Joyner fully complied with the requirements of Federal Rule of

       3
        Maynard explains in his brief: “Following the filing of the notice of appeal, the
appellant sent counsel various letters wherein he set forth issues he wished raised on
appeal.” Appellant Br. at 7.
       4
         Coplin advances the following six issues in his pro se brief: (1) Was the
Appellant a victim of selective prosecution?; (2) Was the Appellant a victim of
sentencing entrapment?; (3) Did the District Court commit an abuse of discretion in
denying the Appellant’s presentencing motion to withdraw his guilty plea?; (4) Did the
District Court err in not crediting the Appellant for acceptance of responsibility pursuant
to § 3E1.1?; (5) Was Appellant’s guilty plea voluntarily and intelligently made?; (6)
Were the Government’s motives for not awarding a downward departure
unconstitutional?
                                             4
Criminal Procedure 11 in conducting the plea colloquy, ensuring that Coplin was

entering into the plea knowingly and voluntarily, and was aware of the 20 year

mandatory minimum.

       Second, the District Court did not abuse its discretion in denying Coplin’s motion

to withdraw his guilty plea. See United States v. Jones, 336 F.3d 245, 252 (3d Cir.

2003). “Once a court accepts a defendant’s guilty plea, the defendant is not entitled to

withdraw that plea simply at his whim. Rather, pursuant to Federal Rule of Criminal

Procedure 32(e), a defendant must have a ‘fair and just reason’ for withdrawing a plea of

guilty.” Id. at 252 (internal citations omitted).5 Coplin conceded at the hearing on the

motion to withdraw the guilty plea that he responded truthfully at the plea colloquy when

he indicated that he entered the plea freely and voluntarily, and had not been given any

promises or assurances in an effort to induce a guilty plea. See App. at 44a.

       Third, the Government did not violate the law in not entering into a plea

agreement with the Appellant that called to make a §5K1.1 motion. “[T]he prosecutor’s

discretion to file [a §5K1.1] motion [is] almost unfettered: the government’s refusal

could only be challenged if it ‘was based on an unconstitutional motive,’ like race or

religion.” United States v. Isaac, 141 F.3d 477, 481 (3d Cir. 1998) (quoting Wade v.

United States, 504 U.S. 181, 185-86 (1992)). Coplin’s assertion that he “was denied a

       5
         “A district court must consider three factors when evaluating a motion to
withdraw a guilty plea: (1) whether the defendant asserts his innocence; (2) the strength
of the defendant’s reasons for withdrawing the plea; and (3) whether the government
would be prejudiced by the withdrawal.” Jones, 336 F.3d at 252.
                                             5
downward departure to retaliate against his sister [sic] decision not to take DEA agents

directly to the target’s house and introduce undercover DEA agent to target,” Coplin Br.

at 16, does not fall within these narrow grounds for challenging the prosecutor’s

discretion. Coplin suggests that he was somehow misled into believing there was an

agreement because the prosecutor told him the § 5K1.1 motion “was already type[d] out

and that she had forgot and left it on her desk at her office and she would make sure that

she had it with her the next time we had a meeting.” Coplin Br. at 14. However, at the

plea colloquy Coplin indicated that he had not been given any promises or assurances in

an effort to induce his plea, see App. at 14a, and Coplin affirmed the truthfulness of these

responses at the hearing on the motion to withdraw the guilty plea, see id. at 51a-52a.6

       6
        Coplin’s testimony on cross-examination by the Government provides, in
pertinent part:

       Q. At some point wasn’t it communicated to you that the information that
       you provided was not going to be enough to earn you a downward
       departure? Were you told that?
       A. By you?
       Q. Yes.
       A. I think I remember you telling me that.
       Q. Okay. And, in fact, you then pled guilty without the benefit of a plea
       agreement that contained any language about a motion for a downward
       departure, correct?
       A. Well, the plea agreement, there was none. Mr. Martir [Coplin’s
       counsel] told me that we had a deal . . . . He didn’t say a plea agreement.
       Q. Before or after your plea?
       A. Before my plea.
       Q. But you didn’t sign anything. You never saw a plea agreement?
       A. No.
       Q. You didn’t tell the judge that one existed, correct?
       A. No, I didn’t.
                                             6
         Fourth, there is no evidence that counsel failed to review the pre-sentence report

or that the report contained an erroneous criminal history. Maynard indicated at Coplin’s

sentencing hearing that he had an opportunity to review the presentence report with his

client, see App. at 94a, and Coplin did not raise either of these objections when given the

opportunity to address the District Court prior to the imposition of his sentence, see id. at

95a.

         Fifth, the District Court did not err in not crediting Coplin for accepting

responsibility pursuant to § 3E1.1 of the Sentencing Guidelines. Because the Sentencing

Guidelines cannot supersede the statutory minimum, the District Court had no discretion

to grant a downward departure. See United States v. Tannis, 942 F.2d 196, 198 (3d Cir.

1991).

         Sixth, there is no evidence supporting the charge of sentencing entrapment, which

“‘occurs when a defendant, although predisposed to commit a minor or lesser offense, is

entrapped into committing a greater offense subject to greater punishment.’” United

States v. Sumler, 294 F.3d 579, 582 (3d Cir. 2002) (quoting United States v.

Ramirez-Rangel, 103 F.3d 1501, 1506 (9th Cir. 1997)).

         Seventh, we find frivolous Coplin’s claim of selective prosecution on the grounds



         Q. When you were asked whether or not there were any promises made to
         you to induce you to plead guilty, you said no, there were not, correct?
         A. Yes, I did.

App. at 51a-52a.
                                               7
that “[i]f law enforcement didn’t need the appellant[’s] sister [as a confidential

informant], he would not have been prosecuted.” Coplin Br. at 7. To begin, “[a]

selective-prosecution claim is not a defense on the merits to the criminal charge itself, but

an independent assertion that the prosecutor has brought the charge for reasons forbidden

by the Constitution.” United States v. Armstrong, 517 U.S. 456, 463 (1996). Moreover,

there is no support in the record for this argument, and, at any rate it does not amount to a

claim of selective prosecution for unconstitutional reasons.



                                             III.

       There is only one argument that gives us pause. Coplin contends that 21 U.S.C. §

841(b)(1)(A) and (B) are facially unconstitutional. As Maynard explains, Coplin sent a

letter to this Court and Maynard, contending that the Ninth Circuit’s decision in United

States v. Buckland, 259 F.3d 1157 (9th Cir. 2001) supports his claim that this provision

is unconstitutional. As Maynard points out, however, the Ninth Circuit reversed that

decision on rehearing en banc. See United States v. Buckland, 277 F.3d 1173 (9th Cir.

2002) (en banc), amended and superseded by United States v. Buckland, 289 F.3d 558

(9th Cir. 2002) (en banc), cert. denied, 535 U.S. 1105 (2002).7

       7
        In the en banc Buckland opinion, the Ninth Circuit reasoned that following the
Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court
was not “bound by our pre-Apprendi holdings that these statutes commit determination
of drug quantity to a judge for a finding under the preponderance standard.” 289 F.3d at
567. That is, the statute was interpreted to avoid a constitutional problem. In so holding,
Buckland comported with the conclusion reached by many of our sister circuits that
                                              8
       While Coplin’s reliance on Buckland is easily dismissed, his argument raises the

more interesting question whether Coplin has a nonfrivolous ground for appeal based on

the Supreme Court’s recent decision in Blakely v. Washington, 124 S. Ct. 2531 (2004),

rendered after the filing of the briefs in this case. Without delving into the many

complex questions raised by Blakely, we conclude that under any interpretation of

Blakely, Coplin has no nonfrivolous ground for appeal.

       In Apprendi v. New Jersey, the Supreme Court explained that “[o]ther than the

fact of a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” 530 U.S. 466, 490 (2000) (emphasis added). In Blakely, the Supreme

Court, in a case reviewing the Washington state sentencing scheme, ruled that for the

purpose of Apprendi, “the relevant ‘statutory maximum’ is not the maximum sentence a

judge may impose after finding additional facts, but the maximum he may impose

without any additional findings.” 124 S. Ct. at 2537.

       Even if Blakely applies to the United States Sentencing Guidelines, the rule

enunciated in Blakely would be inapplicable in this case because Coplin explicitly pled

guilty to the elements of the offense that are a prerequisite to the imposition of the

mandatory minimum sentence of 20 years imprisonment and ten years of supervised

release. First, Coplin specifically pled to knowingly and intentionally distributing or


§ 841 is not facially unconstitutional. See id. at 562 n.1 (citing cases).


                                              9
possessing with the intent to distribute in excess of 50 grams of cocaine base. See App.

at 19a-20a; 21 U.S.C. § 841(b)(1)(A)(iii). These facts and quantities mandate the

imposition of a “term of imprisonment which may not be less than 10 years” and “a term

of supervised release of at least 5 years.” 21 U.S.C. § 841(b)(1)(A).

       Second, Coplin was subject to the increased penalty of “a term of imprisonment

which may not be less than 20 years” and “a term of supervised release of at least 10

years in addition to such term of imprisonment” because of his prior conviction for a

felony drug offense. Thus, the only fact relevant to Coplin’s sentence, other than the

elements to which he specifically pled, was the fact of a prior conviction.

       The prior conviction was not disputed at sentencing. The Presentence

Investigative Report (PSR) specifically indicated that Coplin agreed and stipulated that

he had been convicted of a prior felony drug offense, and was therefore subject to the

enhanced penalty provisions of § 841(b)(1)(A). PSR ¶ 3(b). At the plea colloquy,

Coplin acknowledged the 20-year mandatory minimum sentence. See App. at 14a-15a.

At sentencing, Maynard represented that his client “underst[ood] that there’s a mandatory

minimum . . . of 20 year sentence that the Court must impose,” App. at 95a, and at no

point did Coplin raise an objection to the PSR.8

       Moreover, in Almendarez-Torres v. United States, the Supreme Court rejected the

       8
        At one point during the sentencing hearing, Coplin attempted to object to the
imposition of a ten year term of supervised release. Judge Joyner explained that this was
the mandatory supervised release term under the statute, and directed Coplin to the PSR.
See App. 99a-100a.
                                            10
argument that where the fact of prior conviction made a defendant eligible for an

increased sentence,9 “the Constitution requires Congress to treat recidivism as an element

of the offense . . . [and] [t]he Government must prove that ‘element’ to a jury.” 523 U.S.

224, 239 (1998). Apprendi specifically declined to overrule the prior decision in

Almendarez-Torres, explaining that “[b]ecause Almendarez-Torres had admitted the . . .

earlier convictions . . . —all of which had been entered pursuant to proceedings with

substantial procedural safeguards of their own—no question concerning the right to a

jury trial or the standard of proof that would apply to a contested issue of fact was before

the Court.” Apprendi, 530 U.S. at 488. Rather, Apprendi specifically limited its holding

to facts “[o]ther than the fact of a prior conviction.” 530 U.S. at 490. Nothing in

Blakely overrules Almendarez-Torrez, or the express limitation on the rule announced in

Apprendi. Cf. Blakely, 124 S. Ct. at 2536 (quoting Apprendi, 530 U.S. at 490)

(reiterating that the rule in Apprendi is that “[o]ther than the fact of a prior conviction,

any fact that increases the penalty . . . . ”).

       We are absolutely bound by those decisions, for it is the “[Supreme] Court’s

prerogative alone to overrule one of its precedents.” State Oil Co. v. Khan, 522 U.S. 3,

20 (1997). Even if we believe that the foundation of a prior Supreme Court decision is


       9
        In Almendarez-Torres, the fact of prior conviction triggered an increase in the
maximum permissive sentence, rather than a mandatory minimum sentence. The
Supreme Court, however, explicitly rejected that such a distinction was determinative in
evaluating the constitutionality of the provision. See Almendarez-Torres, 523 U.S. at
244-45.
                                                  11
thoroughly undermined, it is up to the Supreme Court to complete the demolition of its

own decision. Thus, there is no nonfrivolous claim that Coplin’s sentence violated

Blakely.10



       For the foregoing reasons, the judgment of the District Court will be affirmed, and

we will grant Wayne R. Maynard’s motion to withdraw.11




       10
          We note that Coplin was clearly advised in the colloquy that he was
surrendering his right to have a jury determine the elements of the offense, specifically
the elements of specific quantity of drugs, and the proximity to the school. This would
satisfy any reading of Blakely.
       11
         We also note that because the issues presented in the appeal lack legal merit,
they do not require the filing of a petition for writ of certiorari with the Supreme Court.
L.A.R. 109.2(b).

                                             12
