Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
2-15-2002
USA v. Chen
Precedential or Non-Precedential:
Docket 0-2361
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"USA v. Chen" (2002). 2002 Decisions. Paper 126.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 00-2361
___________
UNITED STATES OF AMERICA
v.
GUI FENG CHEN
aka FONG
aka AH FONG
aka LA TI KOY
GUI FENG CHEN,
Appellant
___________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Crim. No. 98-cr-00746)
District Judge: Honorable John C. Lifland
___________
Submitted Under Third Circuit LAR 34.1(a)
February 11, 2002
Before: MANSMANN, McKEE and BARRY, Circuit Judges.
(Filed: February 15, 2002)
___________
MEMORANDUM OPINION OF THE COURT
___________
MANSMANN, Circuit Judge.
Gui Feng Chen pled guilty, pursuant to a plea agreement, to one
count of
conspiring to smuggle aliens into and within the United States in
violation of 8 U.S.C.
1324 and 18 U.S.C. 371, and one count of kidnaping in connection with
alien
smuggling in violation of 18 U.S.C. 1201(a), (c) and 2. The District
Court sentenced
Chen to a 60-month term of imprisonment on the conspiracy count and a 108-
month term
of imprisonment on the kidnaping count, the terms to run concurrently.
Chen filed a
timely notice of appeal, but his counsel seeks leave to withdraw under
Anders v.
California, 386 U.S. 738 (1967), claiming that Chen's appeal is wholly
frivolous.
Pursuant to Third Circuit Local Appellate Rule 109.2(a), Chen filed a pro
se
supplemental brief.
We conclude that counsel's Anders brief satisfies the
requirements outlined
in Smith v. Robbins, 528 U.S. 259, 285 (2000), and United States v.
Marvin, 211 F.3d
778, 780-81 (3d Cir. 2000). Because counsel for Chen, having "thoroughly
reviewed the
transcripts in this matter as well as the applicable case law," was unable
to identify any
issue of even arguable merit, and because we do not find merit in either
of the issues
raised in Chen's pro se submission, we will grant counsel's motion to
withdraw and will
affirm the judgment in a criminal case.
I.
The facts and procedural history underlying this matter are
well-known to
the parties. Accordingly, we turn to the substance of counsel's Anders
brief and to the
issues raised by Chen.
Because Chen pled guilty pursuant to a plea agreement, Chen's
attorney
focuses attention on the agreement itself and particularly on the
circumstances
surrounding the actual plea. Counsel notes that the plea colloquy was
searching and
covered all aspects of the matters with which Chen was charged. The
District Court
reviewed the consequences of the guilty plea, Chen's choice to plead
guilty and his
understanding of what the plea entailed. Chen was advised of the
potential penalties
associated with the guilty plea, the requirements of the Sentencing
Guidelines, and the
nature of the constitutional rights waived by entering a guilty plea.
Chen then pled guilty
to the two counts, admitting in detail the factual underpinnings of each.
At the
conclusion of these proceedings the District Court found Chen fully
competent and
capable of entering an informed plea. The District Court was also
satisfied that Chen
understood the nature of the charges against him and the consequences of
the plea. In
sum, the District Court and Chen's attorney were satisfied that the plea
was knowing,
voluntary, supported by Chen's admissions of fact, and in all respects
compliant with
Fed. R. Crim. P. 11. We do not find anything in the record before us to
contradict this
assessment.
Chen's attorney also addresses the sentence imposed, discussing
in some
detail objections raised by Chen to the PSR and the District Court's
disposition of those
objections. According to Chen's attorney, Chen received a sentence at the
bottom of the
applicable range, "that comported fully with the Sentencing Guidelines."
Counsel for
Chen advises us that his review of the sentencing proceedings did not
reveal any non-
frivolous ground for appeal.
In his pro se brief, Chen raises two issues. He focuses first
on his medical
status. At sentencing Chen requested a downward departure pursuant to
U.S.S.G.
5H1.4 based on his having been diagnosed with a peptic ulcer and a
precancerous lesion.
The District Court declined to depart stating that downward departure
based on medical
reasons was not warranted here "where the defendant appears to have a
treatable
condition," and "the Bureau of Prisons is able to provide suitable care."
In his pro se
brief, Chen states that he has not, in fact, received suitable care.
Chen does not challenge the calculation of his sentence per se.
Even had
he raised a sentencing claim, we lack jurisdiction to review the District
Court's
discretionary decision not to grant a downward departure. United States
v. Denardi, 892
F.2d 269, 270-72 (3d Cir. 1989). In any event, Chen's complaint regarding
medical
treatment is not cognizable here. As the government points out, this
claim should be
addressed in administrative proceedings with the Bureau of Prisons. See
28 C.F.R.
542.10 et. seq. To date, Chen has not pursued this avenue of relief.
Chen also objects to a two-level adjustment based on his role in
the
offense. This objection stems from a discrepancy between the language of
U.S.S.G.
3B1.1(c) which provides for a two-level increase "[i]f the defendant was
an organizer,
leader, manager, or supervisor in a criminal activity," and the following
language in the
PSR: "The Defendant assumed an aggravating role yet less than an
organizer, leader,
manager, or supervisor. Pursuant to U.S.S.G. 3B1.1(c), the offense is
increased two
levels." (Emphasis supplied.) While the discrepancy highlighted does
exist, Chen did
not object to the language used in the PSR, and, in fact, stipulated to a
two level upward
adjustment based on his role in the offense. The stipulation, made part
of the plea
agreement, reads: "Gui Feng Chen played a management/supervisory role in
this offense,
which involved five or more conspirators." Despite the inaccurate
rendering of section
3B1.1(c) in the PSR, Chen received exactly that to which he stipulated and
may not now
attempt to repudiate that stipulation. United States v. Cianci, 154 F.3d
106, 109 (3d Cir.
1998). The conduct set forth in the plea agreement is more than
sufficient to support the
upward enhancement.
II.
Defense counsel advises us, after a thorough review of the
record and the
transcripts, that he has not found any non-frivolous issue for appeal.
Our own
examination of the record, the transcripts, and Chen's pro se submission,
does not reveal
any issue of merit. As a result, we will grant counsel's motion to
withdraw and will
affirm the judgment in a criminal case.
_____________________________________
TO THE CLERK:
Please file the foregoing opinion.
_________/s/ Carol Los
Mansmann, ____
Circuit Judge