                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-27-2009

USA v. Juan Flores-Barahona
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3718




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 07-3718


                           UNITED STATES OF AMERICA

                                           v.

                     JUAN FRANCISCO FLORES-BARAHONA,
                                                Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF DELAWARE
                            (D.C. Crim. No. 06-cr-00142)
                 District Judge: The Honorable Joseph J. Farnan, Jr.


                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 15, 2009


             Before: SLOVITER, BARRY, and SILER, JR.,* Circuit Judges

                           (Opinion Filed: January 27, 2009)


                                       OPINION




*
 The Honorable Eugene E. Siler, Jr., Senior Circuit Judge, United States Court of
Appeals for the Sixth Circuit, sitting by designation.
BARRY, Circuit Judge

       Appellant Juan Francisco Flores-Barahona pled guilty to illegal re-entry after

deportation, in violation of 8 U.S.C. § 1326. The District Court sentenced him to 33

months imprisonment. Flores-Barahona filed this timely appeal, and his counsel filed a

motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). Flores-

Barahona also filed a supplemental pro se brief, raising issues essentially identical to the

ones identified in counsel’s Anders brief. We will affirm Flores-Barahona’s sentence,

and grant his counsel’s motion to withdraw.

                                              I.

       In May 2001, Flores-Barahona was deported to his native country of El Salvador.

He re-entered the United States in November 2003 for the purpose of seeing his children,

and was indicted in the District of Delaware in December 2006 for illegal re-entry. In

May 2007, he pled guilty to that charge. At sentencing, the District Court imposed an

eight-level upward enhancement because Flores-Barahona had been previously deported

as a result of his conviction for an aggravated felony and a three-level reduction for

acceptance of responsibility. Flores-Barahona’s advisory Guidelines range was 33-41

months, and the Court sentenced him to the bottom of that range.

                                              II.

       Third Circuit Local Appellate Rule 109.2(a) provides that “[w]here, upon review

of the district court record, trial counsel is persuaded that the appeal presents no issue of



                                              -2-
even arguable merit, trial counsel may file a motion to withdraw and supporting brief

pursuant to Anders v. California, 386 U.S. 738 (1967).” When we are faced with such a

motion and supporting brief, we must consider both whether counsel has “adequately

fulfilled the rule’s requirements” and whether our own “independent review of the record

presents any nonfrivolous issues” for appeal. United States v. Youla, 241 F.3d 296, 300

(3d Cir. 2001).

                                            III.

       In her brief, Flores-Barahona’s counsel identifies two potential issues for appeal,

but concludes that both are frivolous. The first is whether the District Court correctly

granted an eight-level enhancement in light of Flores-Barahona’s prior deportation for

having committed an aggravated felony. See 8 U.S.C. § 1326(b)(2); U.S.S.G. §

2L1.2(b)(1). There was no error.

       Under the applicable federal law, an aggravated felony includes a “crime of

violence” which carries with it a term of imprisonment of at least one year. 8 U.S.C. §

1101(a)(43)(F). Flores-Barahona’s underlying conviction in Utah for attempted

aggravated assault constitutes a crime of violence.1 In this context, where the federal

criminal law explicitly defines what constitutes an aggravated felony, it is simply

irrelevant that Utah chooses to refer to the crime as a misdemeanor. Compare United



   1
     In Utah, an aggravated assault involves the threat or use of force that is intended to
cause, or is likely to produce, serious bodily injury. See Utah Code Ann. 1953 § 76-5-103
(defining aggravated assault); see also id. § 76-5-102 (defining assault).

                                             -3-
States v. Graham, 169 F.3d 787, 792-93 (3d Cir. 1999) with Francis v. Reno, 269 F.3d

162 (3d Cir. 2001). Additionally, Flores-Barahona was sentenced to 365 days

imprisonment, which satisfies the requirement that the underlying crime carry with it a

sentence of at least one year.2

       The second issue identified by counsel is whether the sentence imposed was

reasonable. We find that it was. The Court properly calculated the Guidelines range, and

carefully considered the relevant 18 U.S.C. § 3553(a) factors.

                                           IV.

       We are more than satisfied that counsel has thoroughly reviewed the record and

found no non-frivolous issues for appeal. Accordingly, we will affirm the judgment of

sentence, and grant counsel’s motion to withdraw.




   2
     The fact that Flores-Barahona’s sentence was suspended is of no consequence. See 8
U.S.C. § 1101(a)(48)(B) (providing that the point of reference is the “period of
incarceration or confinement ordered . . . regardless of any suspension of the imposition
or execution of that imprisonment or sentence”) (emphasis added).

                                            -4-
