NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4578
UNITED STATES OF AMERICA
v.
RICHARD W. HERNANDEZ,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No.1-08-cr-00164-001)
District Judge: Hon. William W. Caldwell
Submitted Under Third Circuit LAR 34.1(a)
July 2, 2010
Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges
(Filed: July 2, 2010)
OPINION
SLOVITER, Circuit Judge.
Richard Hernandez appeals his convictions and sentence for three counts of armed
bank robbery in violation of 18 U.S.C. § 2113(a), (d), and one count of brandishing a
firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Counsel
for Hernandez has moved to withdraw and has accordingly filed an Anders brief,
asserting that there are no non-frivolous issues for appeal. See Anders v. California, 386
U.S. 738, 744 (1967). We will affirm and grant counsel’s motion to withdraw.
I.
On two dates in 2008, Hernandez and a co-defendant robbed three federally
insured banks, obtaining $25,505. During the robberies, Hernandez carried a semi-
automatic gun, pointing it at at least one bank teller. After being identified and
apprehended, both defendants admitted participating in the robberies. They were charged
with three counts of armed bank robbery under 18 U.S.C. § 2113(a), (d), aiding and
abetting armed bank robbery under 18 U.S.C. § 2, using a firearm during a crime of
violence under 18 U.S.C. § 924(c)(1)(A)(ii), and conspiring to commit armed bank
robbery under 18 U.S.C. § 371. Hernandez alone was charged with possession of a stolen
firearm under 18 U.S.C. §§ 922(j) and 924(a)(2).
Counsel was appointed to represent Hernandez. Hernandez entered into a plea
agreement by which he pled guilty to three counts of armed bank robbery, as well as a
count of brandishing a firearm during a crime of violence, and the government agreed to
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dismiss the remaining counts. Count IV, brandishing a firearm during a crime of
violence, carries a statutory mandatory minimum sentence of eighty-four months
imprisonment that is to run consecutively to any other term of imprisonment. Notably,
Hernandez’ counsel asserts that, during the plea bargaining, the government threatened to
prosecute Hernandez for two additional counts under 18 U.S.C. § 924(c), convictions
which would have exposed him to an additional fifty years of imprisonment.
The District Court accepted Hernandez’ guilty plea as “voluntary and informed”
after a colloquy pursuant to Federal Rule of Criminal Procedure 11. App. at 53a. The
presentence report (“PSR”) recommended a Guideline range of 272 to 319 months
imprisonment. Neither Hernandez nor the government objected to the PSR.
At sentencing, the District Court, discussing the factors under 18 U.S.C. § 3553(a)
as well as Hernandez’ individual circumstances, imposed a sentence of 224 months –
forty-eight months below the PSR Guideline computation. Counsel filed a Notice of
Appeal and made the present motion to withdraw as counsel.1
II.
At times, a defense counsel may be faced with conflicting responsibilities to
1
The District Court had jurisdiction under 18 U.S.C. §
3231, and we have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742. We exercise plenary review of questions of law,
and apply a clearly erroneous standard to the District Court’s
findings of fact. United States v. Queensborough, 227 F.3d 149,
156 (3d Cir. 2000).
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support his or her client to the best of his or her ability, on the one hand, and, on the other
hand, to avoid frivolous appeals. Anders, 386 U.S. at 744. Under Anders, if a counsel for
a defendant finds an appeal to be “wholly frivolous, after a conscientious examination of
[the case], he should so advise the court and request permission to withdraw.” Id. This
request must be accompanied by “a brief referring to anything in the record that might
arguably support the appeal.” Id.
An Anders inquiry by the court is twofold. First, the court must determine whether
counsel adequately fulfilled the requirements of Third Circuit Local Appellate Rule
109.2(a) which states, in relevant part:
Where, upon review of the district court record, counsel is persuaded that
the appeal presents no issue of even arguable merit, counsel may file a
motion to withdraw and supporting brief pursuant to Anders v. California,
386 U.S. 738 (1967), which must be served upon the appellant and the
United States.
3d Cir. L.A.R. 109.2(a) (2010).
An adequate Anders brief: (1) “satisf[ies] the court that counsel has thoroughly
examined the record in search of appealable issues,” United States v. Youla, 241 F.3d
296, 300 (3d Cir. 2001); (2) identifies any “issue[s] arguably supporting the appeal even
though the appeal was wholly frivolous,” Smith v. Robbins, 528 U.S. 259, 285 (2000);
and (3) “explain[s] why the issues are frivolous.” United States v. Marvin, 211 F.3d 778,
780 (3d Cir. 2000).
Second, the court must determine “whether an independent review of the record
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presents any nonfrivolous issues.” Youla, 241 F.3d at 300. “An appeal on a matter of law
is frivolous where none of the legal points are arguable on their merits.’” Id. at 301
(quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)) (internal brackets omitted).
We find counsel’s Anders brief to be adequate, as it identifies the only appealable
issues, and explains why each of these issues would be a frivolous ground for appeal.
The Anders brief moreover discusses the plea hearing, notes that our review of the guilty
plea acceptance is for plain error and that, in any event, the District Court complied with
Federal Rule of Criminal Procedure 11, as Hernandez’ plea was knowing, voluntary and
intelligent.
Next, the Anders brief discusses the deference we owe district courts’ sentencing
decisions under Gall v. United States, 552 U.S. 38, 51 (2007), and United States v. Wise,
515 F.3d 207, 216-217 (3d Cir. 2008), and concludes that the District Court here imposed
a sentence that was neither “procedurally deficient [n]or substantively unreasonable,”
Appellant’s Br. at 16.
Finally, counsel advances another issue arguably supporting an appeal, which is
related to the plea bargaining process, i.e., the government’s “threat” to prosecute
Hernandez for additional § 924(c) violations. Although the threat may well have weighed
heavily on the plea negotiations, counsel’s brief explains that such a practice by the
government is not improper. See Bordenkircher v. Hayes, 434 U.S. 357, 364 (1977).
The Anders brief will guide our review because it is adequate and because
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Hernandez filed no pro se brief. There is no non-frivolous issue pertaining to jurisdiction.
18 U.S.C. § 3231 provides district courts with original jurisdiction over “all offenses
against the laws of the United States.” Hernandez was indicted for violating several
statutes of the United States.
There is no non-frivolous issue with regard to plea validity. To be valid, a guilty
plea must be knowing and voluntary. See Boykin v. Alabama, 395 U.S. 238, 242 (1969).
Before accepting a guilty plea, district courts must:
advise the defendant, inter alia, of the waiver of certain constitutional rights
by virtue of a guilty plea, the nature of the charges to which he or she is
pleading guilty, the ‘maximum possible penalty’ to which he or she is
exposed, the court's ‘obligation to apply the Sentencing Guidelines [and]
. . . discretion to depart from those guidelines under some circumstances,’
and ‘the terms of any plea-agreement provision waiving the right to appeal
or to collaterally attack the sentence.’
United States v. Schweitzer, 454 F.3d 197, 202-203 (3d Cir. 2006) (quoting Fed. R. Crim.
P. 11(b)(1)). The District Court met these requirements, and the record leaves no doubt
that Hernandez understood the consequences of his plea and that he entered his plea
voluntarily.
Nor is there any non-frivolous issue related to the reasonableness of the sentence.
We review the District Court’s sentence for abuse of discretion. Gall, 552 U.S. at 51.
We must first “ensure that the [D]istrict [C]ourt committed no significant procedural error
in arriving at its decision, ‘such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a)
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factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence-including an explanation for any deviation from the
Guidelines range.’” Wise, 515 F.3d at 217 (quoting Gall, 552 U.S. at 51). If we discern
no procedural error, we must then “review the substantive reasonableness of the sentence
under an abuse-of-discretion standard, regardless of whether it falls within the Guidelines
range.” Id. at 218 (citing Gall, 552 U.S. at 51). “The touchstone of reasonableness is
whether the record as a whole reflects rational and meaningful consideration of the
factors enumerated in 18 U.S.C. § 3553(a).” United States v. Grier, 475 F.3d 556, 571
(3d Cir. 2007) (en banc) (internal quotations omitted).
Hernandez’ sentence is procedurally reasonable. The District Court recognized
that it was not bound by the Guidelines and imposed a sentence below the Guidelines
suggested range. It moreover provided an adequate explanation for its deviation. The
District Court considered Hernandez’ personal history and circumstances, as well as the
seriousness of the crime, Hernandez’ recidivist nature, and the need for deterrence and
public safety. Nor would we have any basis on which to find an abuse of discretion in the
District Court’s substantive sentence, which was forty-eight months below the Guideline
range.
The final issue arguably supporting an appeal involving the plea bargain lacks
merit. Under Bordenkircher, the government may confront a defendant with the
possibility of more severe punishment during plea negotiations. 434 U.S. at 364. This
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practice is part of the “give-and-take” of plea bargaining. Id. at 363. Furthermore, the
evidence against Hernandez was overwhelming as to the two additional § 924(c)
violations, and it is likely that he would have been convicted on those counts. We can
therefore distinguish this case from those in which additional counts are unfairly
threatened against a defendant, thereby inducing or compelling an involuntary guilty plea.
III.
For the above-stated reasons, we agree with counsel that no non-frivolous issues
for appeal exist in this case. Accordingly, we will affirm the District Court’s judgment
and grant counsel’s motion to withdraw.
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