Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
12-16-2003
USA v. Cumplido
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4473
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"USA v. Cumplido" (2003). 2003 Decisions. Paper 58.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 02-4473
________________
UNITED STATES OF AMERICA
v.
JAIRO SIERRA CUMPLIDO,
Appellant
____________________________________
On Appeal From The District Court of The Virgin Islands
(D.C. No. 01-cr-00254-1)
District Judge: Honorable Thomas K. Moore
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
December 9, 2003
Before: NYGAARD, BECKER, and STAPLETON,
Circuit Judges
(Filed: December 16, 2003)
_______________________
OPINION
_______________________
BECKER, Circuit Judge.
This is an appeal by defendant Jairo Sierra-Cumplido from the judgment in a
criminal case following a plea of guilty to re-entry after deportation. Following the
appeal, defense counsel filed a motion to withdraw and a brief in support of this motion
pursuant to the decision in Anders v. California, 386 U.S. 738 (1967). In that brief, after
a statement of the case and the facts, counsel makes the following statement:
Counsel for Appellant has diligently searched the record in this
matter in good faith, and is not able to assert to this Court hat there are any
appealable issues which would warrant reversal of Appellant’s conviction
However, counsel has found issues which warrant further scrutiny by this
Court.
We have carefully examined the record, as well as the issues that counsel has
suggested warrant further scrutiny by this Court. However, none of them are of any help
to the defendant. While the writer is flattered by the suggestion that his dissenting
opinion in United States v. Denardi, 892 F.2d 269 (3d Cir. 1989), was correct, the fact is
that the majority opinion has prevailed here and in seven other circuits. At all events even
if the dissent were the law, it would not help defendant for the facts in this case do not
suggest that the refusal to depart was “plainly unreasonable” or would result in
unwarranted disparity between sentencing judges. Sierra-Cumplido has previously been
sent to prison twice for involvement in cocaine distribution offenses which were
committed while he was a permanent resident of the United States. The second cocaine
conspiracy offense was committed while he was still on parole for the first offense, and
the re-entry offense was committed while he was on supervised release for the second
drug offense. And despite mitigating factors, it cannot be said on the record that the
refusal to depart was plainly unreasonable or a gross abuse of discretion.
2
Counsel also directs us to United States v. Perakis, 937 F.2d 110 (3d Cir. 1991)
and United States v. King, 53 F.3d 589 (3d Cir. 1995), but neither of these cases help
defendant either.
After thorough examination of the proceedings, we agree with counsel that there
are no non-frivolous issues to raise on appeal. Our jurisprudence requires that counsel in
an Anders situation adequately attempt to uncover the best arguments for his or her client.
See United States v. Donald Wayne Marvin, 211 F.3d 778 (3d Cir. 1999). However,
having read the entire record, we are satisfied that counsel has fulfilled his Anders
obligations. Indeed we commend counsel on his diligence, a model of fidelity to Anders
obligations. We will therefore grant counsel’s request to withdraw, and will affirm the
judgment on the merits.1
1
We also note our view that, because the issues presented in the appeal lack legal merit,
they do not require the filing of a petition for writ of certiorari with the Supreme Court.
3d Cir. LAR 109.2(b)(2000).
3
TO THE CLERK:
Please file the foregoing opinion.
/s/ Edward R. Becker
Circuit Judge
4