                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-7-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-1393




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"USA v. Marrero" (2003). 2003 Decisions. Paper 897.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/897


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                   NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                 __________

                    NO. 02-1393
                    __________

          UNITED STATES OF AMERICA

                          v.

              ANTHONY MARRERO,
                       Appellant

                     __________

            On Appeal from the District Court
                   of the Virgin Islands
              (Criminal No. 99-cr-00057-1)
      District Judge: Honorable Raymond L. Finch

                     __________

            Argued on November 14, 2002

Before: SCIRICA, ALITO, and RENDELL, Circuit Judges

                (Filed January 7, 2003)


                               Stephen A. Brusch, Esq. [ARGUED]
                               International Plaza
                               P. O. Box 988
                               Charlotte Amalie, St. Thomas
                               USVI 00804
                                  Counsel for Appellant

                               Tracey Christopher, Esq. [ARGUED]
                               Office of United States Attorney
                               1108 King Street, Suite 201
                               Christiansted, St. Croix
                                                      USVI 00820
                                                         Counsel for Appellee
                                              __________

                                     OPINION OF THE COURT
                                           __________

RENDELL, Circuit Judge.

        Anthony Marrero appeals from the District Court’s refusal to vacate the judgment

order based on his guilty plea.

        The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and review the District Court’s order for abuse of discretion.

United States v. Harris, 44 F.3d 1206, 1210 (3d Cir. 1995). We will affirm.

        Marrero was charged with being a felon in possession of a firearm and ammunition.

He was present on the balcony of a third floor condominium unit at Colony Cove

Condominium Complex on St. Croix, Virgin Islands, when agents of the Virgin Islands High

Intensity Drug Trafficking Area Task Force executed a search warrant. As the agents were

entering the building, they observed a Glock 17 handgun being thrown from the third floor

balcony. Marrero was thereafter found to be in possession of a black holster and two fully-

loaded Glock magazines matching the firearm thrown from the balcony. Marrero and

several others were arrested. Marrero pled guilty after being advised by his counsel that the

government would withdraw the plea offer if not agreed to by the next day. Marrero’s

standard plea colloquy included questions regarding the knowing and voluntary nature of the

plea. Thereafter, his co-defendant brother lodged a successful challenge in the trial court



                                                  -2-
to the search based on lack of probable cause for the issuance of the warrant.

        Marrero then sought to withdraw his guilty plea based upon his desire to lodge a

similar challenge to the search warrant as lacking probable cause. Marrero’s counseled

motion stated that Marrero was not asserting his innocence but wanted to object to the

unreasonable search and seizure in violation of his Fourth Amendment rights under the

Constitution.

        In denying Marrero’s motion to vacate his guilty plea, the District Court evaluated

the three factors set forth in United States v. Jones, 979 F.2d 317, 318 (3d Cir. 1992): 1)

whether Marrero asserted his innocence, 2) whether the government would be prejudiced

by his withdrawal, and 3) the strength of Marrero’s reasons to withdraw. Regarding the first

prong, the Court noted that although Marrero orally asserted his innocence at the hearing,

in his written motion, Marrero had not asserted his innocence, nor did he ever explain why

he had taken contradictory positions before the Court. The Court then found that Marrero

was really only arguing that his plea should be vacated on the grounds that the search

violated his Fourth Amendment rights. The Court held that under Tollet v. Henderson, 411

U.S. 258 (1973), the guilty plea constituted a waiver of all claims of deprivation of a

constitutional right that may have occurred prior to its entry. The Court concluded that

Marrero had not asserted sufficient grounds for permitting withdrawal of his plea because

he had failed to satisfy the innocence and strong reasons prongs of Jones, and that,

accordingly, the government need not satisfy the final prong, namely, prejudice.

        Marrero then requested reconsideration, contending that his plea was not entered

                                                   -3-
knowingly and voluntarily because he had felt pressured by his counsel and the government.

The motion also urged the Court to consider the claim of innocence he raised at the hearing

and to fault counsel, not Marrero, for his failure to assert his innocence in the motion

originally filed.        Marrero then retained new counsel and filed an additional motion for

reconsideration based upon ineffective assistance of counsel and the coercion of his plea.

The District Court denied reconsideration without opinion.

         We agree with the District Court’s original opinion concluding that by pleading

guilty Marrero waived his right to object to the search on probable cause grounds, and

finding that the plea colloquy established that his plea was knowing and voluntary.

Marrero’s argument on appeal consists primarily of the claims contained in his motion for

reconsideration, in which he raised, for the first time, the charge based on ineffective

assistance of counsel. We cannot fault the District Court for denying reconsideration when

it was based on an issue not raised in the initial motion to vacate. The purpose of a

reconsideration motion is to correct manifest errors or present newly discovered evidence.

Harasco v. Zlotnick, 779 F.2d 906, 909 (3d Cir. 1985). It thus does not appear that

reconsideration was warranted.

         Further, we will not disturb the District Court’s conclusion that Marrero never in

fact asserted his innocence, in light of the inconsistent positions taken by Marrero in the

proceedings, and especially in light of the fact that at the change of plea hearing Marrero

agreed that the government’s rendition of the facts was correct.

         With respect to the allegations that counsel was ineffective, we do not normally

                                                    -4-
consider such claims on direct appeal, preferring instead that the record be further

developed in habeas corpus proceedings. United States v. Haywood, 155 F.3d 674, 678 (3d

Cir. 1998); United States v. Touby, 909 F.2d 759, 773 n.8 (3d Cir. 1990), aff’d, 111 S. Ct.

1752 (1991). We see no reason to alter that proscription in this case, and therefore

suggest that any claims of ineffective assistance be pursued by way of habeas corpus

review.

          Accordingly, the judgment of the District Court will be affirmed.

___________________________




                                                    -5-
TO THE CLERK OF COURT:

       Please file the foregoing Not Precedential Opinion.




                                                       /s/ Marjorie O. Rendell
                                                       Circuit Judge

Dated: January 7, 2003
