                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-24-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4378




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                                                    NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                          No. 04-4378



                UNITED STATES OF AMERICA

                                v.


                       NARCISCO FELIX,
                                    Appellant




         On Appeal from the United States District Court
                for the District of New Jersey
               (D.C. Crim. No. 94-cr-00647-6)
             District Judge: Hon. John C. Lifland



           Submitted Under Third Circuit LAR 34.1(a)
                        July 14, 2006

    Before: SLOVITER, McKEE and RENDELL, Circuit Judges

                      (Filed: July 24, 2006)



                           OPINION
SLOVITER, Circuit Judge.

          In 1998, the United States District Court for the District of New Jersey sentenced

Narcisco Felix to sixty-five months of imprisonment and five years of supervised release

following Felix’s plea of guilty to one count of conspiracy to possess with intent to

distribute 250 kilograms of cocaine. The sentence reflected a departure, based on the

government’s substantial assistance motion, below the statutory minimum of ten years in

prison.

          Felix completed the custodial portion of his sentence on October 1, 2002.

Unfortunately, he returned to his old habits, and on January 8, 2004, he pled guilty in the

United States District Court for the Middle District of Florida to conspiracy to possess

with intent to distribute five kilograms or more of cocaine and one kilogram or more of

heroin. On May 20, 2004, the Florida District Court sentenced Felix to forty-six months

in prison and five years of supervised release. The Florida sentence reflected a downward

departure on the term of imprisonment because of Felix’s substantial assistance.

          At or about the same time, the New Jersey District Court was concerned with

Felix’s violation of the terms of his supervised release on the earlier crime. On

November 4, 2004, that court held a hearing at which Felix conceded that he had violated

the terms of his supervised release, as reflected by his Florida conviction. Although

U.S.S.G. § 7B1.4 suggested a range of twenty-four to thirty months in prison for the

violation, the government argued for a term of sixty months, given that Felix’s original

custodial sentence of sixty-five months was the result of a downward departure. The

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District Court revoked the previously imposed term of supervised release, exercised its

discretion, and sentenced Felix to sixty months in prison to be served consecutively to

any previously imposed state or federal sentence. Felix timely filed this appeal.1

       Felix’s counsel has filed a brief and motion to withdraw pursuant to Anders v.

California, 386 U.S. 738 (1967). Under Anders, if, after review of the record and a

conscientious investigation, counsel is convinced that the appeal presents no issue of

arguable merit, counsel may properly ask to withdraw while filing a brief referring to

anything in the record that might arguably support the appeal. See id. at 741-42, 744. To

satisfy the Anders requirements, counsel must “satisfy the court that he or she has

thoroughly scoured the record in search of appealable issues” and then “explain why the

issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000) (citation

omitted). Although Felix was advised of his right to file a pro se brief in this court, he

has not done so.

       We agree with counsel’s assessment that there are no non-frivolous issues for

appeal. Felix conceded that he violated his supervised release by committing the Florida

offense – a Grade A violation that necessitated the revocation of his supervised release.

See U.S.S.G. §§ 7B1.1(a)(1), 7B1.3(a)(1).

       Felix had a Criminal History Category of I, which with a Grade A violation



                    1
                     We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
             § 3742(a)(1). See United States v. Cooper, 437 F.3d 324, 328 (3d
             Cir. 2006).

                                              3
indicated a sentencing range of twenty-four to thirty months in prison. See U.S.S.G. §

7B1.4. However, “[w]here the original sentence was the result of a downward departure

(e.g., as a reward for substantial assistance) . . . an upward departure may be warranted.”

Id. at Application Note 4. The statutory maximum for Felix’s violation was sixty months

in prison. See 18 U.S.C. § 3583(e)(3).

       The District Court exercised its discretion and imposed a sentence of sixty months.

The Court noted that Felix received a reduction of fifty-five months on his original

sentence and a seventy-four month reduction on his Florida sentence based on departures

for substantial assistance. The District Court also observed that Felix had displayed

recidivist behavior in committing a similar drug offense shortly after his release from

confinement. While Felix sought leniency based on the birth of a child and his

relationship with a woman, the District Court noted that neither of those factors had any

impact in the first instance in preventing Felix from engaging in criminal conduct. The

Court also found that Felix remains a danger to the community.

       The applicable guideline provision, § 7B1.4(a), reflects a mere policy statement

and has never been considered mandatory in imposing sentence for a supervised release

violation. See United States v. Schwegel, 126 F.3d 551, 555 (3d Cir. 1997) (per curiam)

(holding that “the district court was not required to sentence [the defendant] to a sentence

within the range set out in U.S.S.G. § 7B1.4"). Of course, under United States v. Booker,

543 U.S. 220 (2005), which was decided after Felix was sentenced, the Guidelines in



                                             4
their entirety are now considered advisory. Booker, however, worked no material change

with respect to Felix’s sentencing, as the District Court did not impose sentence under a

mandatory regime.

       Prior to Booker, this court applied an abuse of discretion standard in review of a

decision to exceed the range suggested by § 7B1.4(a), see Schwegel, 126 F.3d at 555,

asking whether the sentence was “‘plainly unreasonable.’” United States v. Blackston,

940 F.2d 877, 894 (3d Cir. 1991) (quoting 18 U.S.C. § 3742(e)(4)). Arguably, review of

such a sentence post-Booker should be for mere “reasonableness.” We need not decide

here which standard applies, as Felix’s sentence is supportable even under a review for

reasonableness.

       A district court must consider the advisory sentencing range under § 7B1.4(a) and

“state on the record its general reasons under section 3553(a) . . . for imposing a more

stringent sentence.” Blackston, 940 F.2d at 894. “[T]here is no requirement that the

district court make specific findings with respect to each of the section 3553(a) factors

that it considered.” Id. at 893-94. The district court simply must give meaningful

consideration to the § 3553(a) factors and address any argument raised by a party that has

recognized legal merit. United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006).

       The District Court explained, consistent with Application Note 4, that a sentence

above the suggested range was warranted because Felix’s original sentence (in addition

to his subsequent Florida sentence) was the result of a significant downward departure for



                                             5
substantial assistance. The District Court expressly considered Felix’s request for

leniency, but found that request outweighed by Felix’s quick lapse into recidivism, his

danger to the community, and the seriousness of the Florida drug conviction that

constituted the violation of supervised release. On this record, any challenge to the

reasonableness of the sentence imposed must fail.

       For the reasons stated, we will grant counsel’s motion to withdraw and affirm the

District Court’s judgment. The issues presented in the appeal lack legal merit and do not

require the filing of a petition for writ of certiorari with the Supreme Court. 3d Cir. LAR

109.2(b).




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