                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-14-2008

USA v. Lopez-Arias
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5001




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Recommended Citation
"USA v. Lopez-Arias" (2008). 2008 Decisions. Paper 1757.
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                                                     NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 05-5001


                UNITED STATES OF AMERICA

                                v.

                    RICHARD LOPEZ-ARIAS
                    a/k/a OSWALD ACEVES
                         a/k/a TOMATO

                                           Richard Lopez-Arias,
                                                           Appellant


          On Appeal from the United States District Court
                    for the District of New Jersey
                  D.C. Criminal No. 05-cr-00259-1
           District Judge: Honorable Jerome B. Simandle


          Submitted Pursuant to Third Circuit LAR 34.1(a)
                        November 5, 2007

Before: SCIRICA, Chief Judge, AMBRO and JORDAN, Circuit Judges.

                     (Filed: January 14, 2008)



                   OPINION OF THE COURT
SCIRICA, Chief Judge.

       Richard Lopez-Arias appeals his criminal sentence and conviction. We will

affirm.1

       Lopez-Arias pleaded guilty to a two-count indictment charging conspiracy to

distribute and possession with intent to distribute five hundred or more grams of cocaine

under 21 U.S.C. §§ 841(a)(1), 846 and to carrying a firearm during and in relation to a

drug trafficking crime under 18 U.S.C. § 924(c)(1)(A). Refusing the Government’s

proposed plea agreement, Lopez-Arias chose instead to enter an open plea of guilty.

Defense counsel discussed with Lopez-Arias the proposed plea agreement, as well as his

right to a jury trial and the risks associated with trial and with entering an open plea.

Defense counsel objected to the original pre-sentence investigation report, and the

guideline range calculation was modified.

       In entering his guilty plea, Lopez-Arias agreed that one of his co-conspirators

possessed firearms during the drug transaction, although he denied having knowledge of

the firearms at the time of the transaction. Lopez-Arias also agreed the Government

could prove beyond a reasonable doubt the presence of firearms was reasonably




   1
    Lopez-Arias’ attorney filed a brief under Anders v. California, 386 U.S. 738 (1967),
and a motion to withdraw as court-appointed counsel. Lopez-Arias filed a pro se brief
with this Court on June 30, 2006.

                                               2
foreseeable in light of the quantity of drugs and money involved.2 The District Court

imposed a sentence of 135 months incarceration.

       Our review reveals defense counsel thoroughly considered all plausible bases for

appeal. Counsel examined at length the factual basis for Lopez-Arias’ plea, including

Lopez-Arias’ admissions regarding the presence and foreseeability of firearms during the

drug transaction given the quantity of money and drugs involved. Here, Lopez-Arias


   2
   The transcript of Lopez-Arias’s plea hearing on June 14, 2005, contains the following
exchange before the District Court:
      Court:        [D]o you agree that it was reasonably foreseeable that
                    firearms would be carried during and in relation to a drug
                    transaction involving three kilograms of cocaine, eight pounds
                    of marijuana, and $75,000 in cash even if it was not
                    personally known to you?
      Lopez-Arias: Yes, I believe it’s reasonable to think that, even though I
                    never knew that they were present.
      Court:.       Very well. And so even though you’re saying you did not
                    personally know that there would be weapons there, you do
                    agree that it was reasonably foreseeable that weapons could
                    be there because of the quantity of drugs and money that were
                    coming together could be with strangers, is that correct?
      Lopez-Arias: Yes.
      Court:        And do you agree that the Government could prove that
                    beyond a reasonable doubt?
      Lopez-Arias: Yes.
      Court:        Are you guilty of the crimes charged in the indictment?
      Lopez-Arias: Yes, I am guilty for the drugs and if I - - you know, if the
                    charge against me is warranted for the firearms that were
                    involved in this transaction, then I will accept it, even though
                    I had no knowledge of that there, that there, that there were
                    firearms involved.
      Court:        Do you agree one of the coconspirators possessed firearms in
                    connection with this drug transaction?
      Lopez-Arias: Yes, I agree because, because it was his girlfriend who told
                    me that he had brought the firearms.

                                            3
agreed it was “reasonably foreseeable” that “firearms would be carried during and in

relation to” the subject drug transaction, and that his co-conspirator actually possessed

firearms during that transaction. Under the rule established in Pinkerton v. United States,

328 U.S. 640 (1946), the possession of firearms in violation of 18 U.S.C. § 924(c)(1)(A)

is attributable to Lopez-Arias as an act completed by a co-conspirator in the furtherance

of the conspiracy. See United States v. Ramos, 147 F.3d 281, 286 (3d Cir. 1998); United

States v. Casiano, 113 F.3d 420, 427 (3d Cir. 1997).3

       In the Anders brief, defense counsel addressed the drug weight used in calculating

Lopez-Arias’ guideline range. The court included in the calculation drugs found in

Lopez-Arias’ bedroom following his arrest. At sentencing, Lopez-Arias argued that the

drugs were not his, that he had no knowledge of them, and that they may have been

placed in his room by a co-defendant. The District Court disagreed, and included in the

drug calculating the drugs found in Lopez-Arias’ home together with those from the drug

transaction, citing the storage of drugs in Lopez-Arias’ bedroom as conduct reasonably



   3
    Moreover, “a district court need not . . . be convinced beyond a reasonable doubt of a
defendant’s guilt to accept a plea of guilty; it need only find sufficient evidence in the
record as a whole to justify a conclusion of guilt.” United States v. Lessner, 498 F.3d
185, 197 (3d Cir. 2007) (citing United States v. Cefaratti, 221 F.3d 502, 509-10 (3d Cir.
2000); North Carolina v. Alford, 400 U.S. 25, 37-38 (1970) (permitting court to accept
defendant’s guilty plea over protestations of innocence)). “‘The court may make that
inquiry by looking to the defendant’s own admissions, the government’s proffer of
evidence, the presentence report, or whatever means is appropriate in a specific case–so
long as the factual basis is put on the record.’” Lessner, 498 F.3d at 197 (citations
omitted). Here, the factual basis on the record–including Lopez-Arias’s own statements
during his plea colloquy–was sufficient for the court to accept the guilty plea.

                                             4
foreseeable and collateral to the offense of conviction under U.S.S.G. § 1B1.3, and

alternatively, under Pinkerton as conduct committed by a co-conspirator. We see no

error.

         As noted, Lopez-Arias also submitted a brief, raising four issues: 1) the finding of

drug quantity was improper, 2) there was no factual basis for his guilty plea, 3) there was

a constructive amendment to the indictment, and 4) ineffective assistance of counsel. We

have already addressed the first and second issues.

         Turning to the third issue, a constructive amendment of an indictment “occurs

where a defendant is deprived of his ‘substantial right to be tried only on charges

presented in an indictment returned by a grand jury.’” United States v. Vampire Nation,

451 F.3d 189, 204 (3d Cir. 2006) (quoting United States v. Miller, 471 U.S. 130, 140

(1985)). Here, the alteration to the factual basis of the plea agreement did not alter Count

Two of the indictment. In both the original and amended plea memorandums, Lopez-

Arias admitted to the essential elements of the crime and to his culpability.

         Finally, Lopez-Arias raised ineffective assistance of counsel. We do not ordinarily

consider ineffective assistance claims on direct review, as such claims are “best decided

in the first instance in a collateral action.” United States v. Thornton, 327 F. 3d 268, 272

(3d Cir. 2003).

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

Defense counsel’s motion to withdraw is granted.



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