NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-4410
_____________
UNITED STATES OF AMERICA
v.
RAFAEL INOA SANTANA,
Appellant
Appeal from the District Court
for the Virgin Islands, Division of St. Thomas and St. John
(Crim. No. 03-cr-00065)
District Judge: Hon. Raymond L. Finch
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 13, 2010
Before: McKEE, Chief Judge, FUENTES and SMITH, Circuit Judges,
(Opinion filed March 10, 2011)
OPINION
McKee, Chief Judge
Rafael Inoa Santana appeals the judgment of conviction and sentence of the
District Court for the Virgin Islands that resulted in his being ordered to serve a sentence
of 188 months in prison. His attorney has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), in which he claims that there are no nonfrivolous issues for appeal
and asks to be relieved from representing Santana. For the reasons addressed below, we
will grant counsel’s petition and affirm the conviction and sentence.
I.
Because we write primarily for the parties, it is not necessary to recite the facts of
this case at length.
It is sufficient to note that Santana entered into a negotiated guilty plea to
conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841, 846. Santana agreed
that if the trial court granted a sentencing reduction of at least two levels, he would
waive his right to appeal. The trial court determined that Santana’s base offense level
under the Sentencing Guidelines was 38. The court adjusted the level to 36 pursuant to
the plea agreement and the government’s § 5K1.1 letter motion. A. 36. The resulting
offense level yielded a suggested sentencing range of 188-235 months imprisonment. As
noted, the court sentenced Santana to 188 months imprisonment to run concurrently with
a sentence issued by the District Court for the District of Puerto Rico, and imposed a five
year term of supervisory release. As a special condition of supervised release, Santana
was ordered not to reenter the United States without the written permission of the United
States Attorney General. This appeal followed.1
As noted above, Santana’s appointed counsel has filed a motion to withdraw and
an Anders brief stating that he is unable to identify any non-frivolous issues for review.
1
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
In accordance with LAR 109.2(a), the government and Santana were provided with a
copy of the Anders brief. Not surprisingly, the government agreed with defense
counsel’s assessment that any appeal would be frivolous. Santana did not file a response.
II.
When counsel submits an Anders brief, we must determine: (1) whether appellate
counsel fulfilled the requirements of LAR 109.2(a), and (2) whether an independent
review of the record presents any non-frivolous issues. United States v. Youla, 241 F.3d
296, 300 (3d Cir. 2001). In order to adequately fulfill the requirements of LAR 109.2,
the Anders brief must “satisfy the court that [counsel] has thoroughly scoured the record
in search of appealable issues” and must “explain why the issues are frivolous.” United
States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000). Where the Anders brief is adequate,
we review only portions of the record implicated by the brief. Youla, 241 F.3d at 301.
Counsel identifies four potential issues for appeal and concludes they are all
frivolous. The issues he identifies are: (1) the district court’s jurisdiction; (2) the plea’s
validity; (3) the validity and enforceability of the appellate waiver, and (4) the sentence’s
legality. We find counsel’s Anders brief to be adequate, and therefore confine our review
of the record to the issues set forth in the brief.
The first issue would clearly be frivolous because Santana was charged with a
federal crime; hence, the district court had jurisdiction pursuant to 18 U.S.C. § 3231.
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The second issue would also be frivolous because Santana’s guilty plea was valid.
Santana has not introduced any evidence that his guilty plea was not voluntary and
knowing, and the record demonstrates that the plea complies with the standards set forth
in Boykin v. Alabama, 395 U.S. 238 (1969) and Federal Rule of Criminal Procedure 11.
As for the third issue, appeal waivers are valid and enforceable as long as the
waiver was voluntary and knowing and enforcement does not work a miscarriage of
justice. United States v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001). Appealing the
validity of the waiver would be frivolous because, like the guilty plea, the record shows
that Santana entered into the appeal waiver “knowingly, voluntarily, and upon the advice
of counsel.” App. 000047. Santana also received the two offense level deduction agreed
to in exchange for waiving his right to appeal, and enforcing the waiver would clearly not
amount to a miscarriage of justice.
Finally, because Santana expressly agreed to waive any right to appeal his
sentence, an attempt to do so would be frivolous. The sentence was not illegal. It did not
exceed the statutory maximum for the crime charged, and it was procedurally and
substantively reasonable. Because Santana is not a United States citizen, the trial court
did not abuse its discretion when it imposed a special condition prohibiting Santana from
re-entering the United States without written permission of the Attorney General.
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III.
Accordingly, we will affirm the judgment of conviction and sentence. Defense
counsel’s motion to withdraw will be granted.
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