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


1-23-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4560




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                                                 NOT PRECEDENTIAL


      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 04-4560


          UNITED STATES OF AMERICA

                          v.

              ALBERTO RODRIGUEZ,

                                     Appellant


    On Appeal from the United States District Court
              for the District of Delaware
      (D.C. Criminal Action No. 04-cr-00047-2)
        District Judge: Honorable Kent Jordan


      Submitted Under Third Circuit LAR 34.1(a)
                  January 12, 2006


Before: BARRY, AMBRO and ALDISERT, Circuit Judges

               (Filed January 23, 2006)




                      OPINION
AMBRO, Circuit Judge

                                             I.

       On August 17, 2004, Alberto Rodriguez pled guilty in the United States District

Court for the District of Delaware to two counts of conspiracy to distribute and attempted

possession with intent to distribute more than five kilograms of cocaine in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. Although the Presentence Report calculated the

applicable range of punishment under the Sentencing Guidelines as 70 to 87 months in

prison, the Government filed a motion for a downward departure under U.S.S.G. § 5K1.1

to take account of Rodriguez’s substantial assistance. Rodriguez requested a downward

adjustment under U.S.S.G. § 3B1.2 for his alleged minor role in the conspiracy. The

District Court granted the Government’s motion for a downward departure, denied

Rodriguez’s request for a downward adjustment, and sentenced him to 40 months in

prison. Rodriguez now appeals.

       Counsel for Rodriguez has moved this Court to allow him to withdraw from this

case, and has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating

that Rodriguez’s only possible ground of appeal is a challenge to the District Court’s

refusal to depart downward due to his alleged minor role, a decision counsel contends we

lack jurisdiction to review. Counsel and the Government are in agreement that

Rodriguez’s appeal is frivolous. Rodriguez has not filed a pro se response to counsel’s

Anders brief, nor has he requested resentencing in light of United States v. Booker, __



                                             1
U.S. __, 125 S. Ct. 738 (2005). Because we agree that this appeal presents no non-

frivolous issues, we affirm the judgment of conviction and sentence and grant counsel’s

motion to withdraw.1

                                             II.

       In Anders, the Supreme Court stated:

              [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 [client’s] 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. A copy of
              counsel’s brief should be furnished the indigent and time
              allowed him to raise any points that he chooses; the court —
              not counsel — then proceeds, after a full examination of all
              the proceedings, to decide whether the case is wholly
              frivolous.

386 U.S. at 744. When preparing an Anders brief, counsel has two duties: “(1) to satisfy

the court that counsel has thoroughly examined the record in search of appealable issues,

and (2) to explain why the issues are frivolous.” United States v. Youla, 241 F.3d 296,

300 (3d Cir. 2001). Our analysis begins with an examination of the brief to determine

whether these requirements are met, and extends to “an independent review of the record”

to determine if the case “presents any nonfrivolous issues.” Id.




       1
          The District Court had subject matter jurisdiction over this case under 18
U.S.C. § 3231, and we have jurisdiction over the appeal under 28 U.S.C. § 1291 and 18
U.S.C. § 3742.
                                              2
                                              III.

       Although we conclude, for the reasons noted below, that counsel has not satisfied

his obligation of properly identifying the issues on appeal and correctly explaining why

they are frivolous, we believe this error is harmless because the issue actually raised by

this appeal is frivolous. Rodriguez has never raised any question about his guilt or the

knowing and voluntary nature of his plea, and we cannot locate any errors in the record

that could conceivably give rise to such claims. Rather, as counsel states in his brief,

Rodriguez’s sole concern after his sentencing was the District Court’s refusal to grant his

request for a minor role downward adjustment, and Rodriguez instructed his attorney to

file a notice of appeal on this basis. In his brief, counsel argues that the District Court’s

ruling denied a “downward departure,” and that we therefore lack jurisdiction to review

that ruling under 18 U.S.C. § 3742(a). See, e.g., United States v. Minutoli, 374 F.3d 236,

239-40 (3d Cir. 2004) (“It is well-established in this Court that we lack jurisdiction to

review the merits of a district court’s discretionary decision to refuse a downward

departure under the Sentencing Guidelines once we determine that the district court

properly understood its authority to grant a departure.”); United States v. Denardi, 892

F.2d 269, 271-72 (3d Cir. 1989) (same). In fact, as the Government points out in its brief,

Rodriguez requested a downward adjustment of his Guidelines range under § 3B1.2, not a

departure from the Guidelines, and clearly we have jurisdiction to review the District

Court’s calculation of the Guidelines range. See 18 U.S.C. § 3742(a)(2) (allowing a



                                               3
defendant to appeal a sentence that “was imposed as a result of an incorrect application of

the sentencing guidelines”); Minutoli, 374 F.3d at 238 n.1 (reviewing a district court’s

refusal to grant a minor role downward adjustment under § 3B1.2 and citing cases).

       By contending that the only issue on appeal is the District Court’s denial of a

downward departure, and that the issue is frivolous because we lack jurisdiction to

consider such an appeal, counsel has not satisfied his duty of properly identifying the

issues on appeal and correctly explaining why they are frivolous. The Government’s brief

convinces us, however, that counsel’s error is harmless because the ground on which

Rodriguez does appeal — the District Court’s refusal to grant a downward adjustment

under § 3B1.2 — is frivolous.

       At the sentencing hearing, Rodriguez’s counsel conceded that Rodriguez and his

two co-conspirators were “partners[]” in the criminal enterprise, that Rodriguez was

recruited into the partnership by the first co-conspirator to help secure funding, and that

Rodriguez recruited the third co-conspirator. Rodriguez’s counsel argued that there was

an understood “pecking order” within the conspiracy (presumably based on who recruited

whom), but expressly declined to present any evidence of this and did not dispute the

Government’s statements that no member had the power to terminate another, that

Rodriguez was the sole link between the other two partners, and that they functioned as

equals. Indeed, counsel stated that Rodriguez and the Government were “pretty much

. . . in agreement the facts are as they are.” Based on these concessions, and our



                                              4
independent review of the record, we discern no basis on which Rodriguez could satisfy

his burden of proving that his “involvement, knowledge and culpability were materially

less than those of other participants.” United States v. Brown, 250 F.3d 811, 819 (3d Cir.

2001) (internal quotation marks omitted). His claim “lacks an arguable basis either in law

or in fact,” and is therefore frivolous. Neitzke v. Williams, 490 U.S. 319, 325 (1989).2

                                            IV.

       For the foregoing reasons, we affirm the judgment of conviction and sentence. We

also grant Rodriguez’s counsel’s motion to withdraw.




       2
         Although we generally remand pre-Booker sentences to the District Court for
resentencing, see United States v. Davis, 407 F.3d 162, 165 (3d Cir. 2005), we do so only
when a defendant affirmatively requests such a remand. See id. at 166 (“Appellants have
been directed to state whether they wish to challenge their sentences under Booker. For
those who do not, we consider the appeal on its merits.”). Because Rodriguez has not
requested resentencing in light of Booker, a remand is not warranted in this case.
                                             5
