Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
11-6-2003
USA v. Garcia
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3147
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 02-3147
UNITED STATES OF AMERICA
v.
CARLOS GARCIA,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Crim. No. 01-00546-03)
District Judge: Hon. Jan E. DuBois
Submitted pursuant to Third Circuit LAR 34.1(a)
November 3, 2003
Before: McKEE and SMITH, Circuit Judges,
and WEIS, Senior Circuit Judge
(Filed November 6, 2003)
OPINION
McKEE, Circuit Judge.
Carlos Garcia appeals from the district court’s judgment of conviction and
sentence. We agree with defense counsel’s representation that there are no non-frivolous
issues for appeal. Accordingly, we will affirm. See, Anders v. California, 386 U.S. 738
(1967).
I.
Inasmuch as we write only for the parties, it is not necessary to recite the facts of
this case. It is sufficient for our purposes to note that on July 17, 2001, Garcia was
arrested with two other individuals and charged in a complaint and warrant with
conspiracy to distribute heroin and the distribution of heroin. Thereafter, a grand jury
returned an indictment charging Garcia and two other individuals with conspiracy to
distribute more than one kilogram of heroin, in violation of 21 U.S.C. § 846 (Count One).
Garcia was also charged with distribution, and aiding and abetting the distribution of
heroin, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts Five and Six).
The government also sought criminal forfeiture of designated property pursuant to 21
U.S.C. § 853. On December 21, 2001, pursuant to a guilty plea agreement, Garcia
entered a guilty plea to Counts One, Five, and Six of the indictment.
Garcia was thereafter sentenced to a term of imprisonment of 46 months on Counts
One, Five and Six (such terms to run concurrently), a term of four years supervised
release, no fine, and a special assessment of $300. Garcia, acting pro se, filed a timely
appeal.
II.
Appointed counsel for Garcia has filed an Anders brief stating that he is unable to
identify any non-frivolous issue for review. An appointed appellate counsel who “finds
[a] case to be wholly frivolous, after a conscientious examination of” the case, must so
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advise the court of appeals and request permission to withdraw. Anders v. California,
386 U.S. 738, 744 (1967). Counsel’s request must be accompanied by a “brief referring
to anything in the record that might arguably support the appeal.” Id. The brief must
identify any “issue arguably supporting the appeal even though the appeal was wholly
frivolous,” Smith v. Robbins, 528 U.S. 259, 285 (2000), “explain why the issues are
frivolous,” United States v. Marvin, 211 F.3d 778, 781 (3d Cir. 2000), and show that
counsel “thoroughly scoured the record in search of appealable issues.” Id. at 780; see
also United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001).
Defense counsel’s Anders brief refers us to the portions of the record that arguably
present non-frivolous issues. Counsel thereby identifies the following issues: (1) whether
the guilty plea was entered knowingly and lawfully and (2) whether the sentence was
lawful. However, counsel has concluded that any claim of error would be frivolous. We
agree. The guilty plea clearly met the standards of Boykin v. Alabama, 395 U.S. 238
(1969) and Fed.R.Crim.P. 11. Moreover, the concurrent sentences imposed on Garcia
represent the lowest appropriate sentences under the applicable sentencing guidelines.
There were no grounds or special circumstances to justify a lesser sentence than the
minimum required by the guidelines, such as a U.S.S.G. § 5K1.1 motion. The sentencing
court therefore properly imposed a sentence that comported with the range of sentences
set forth by the sentencing guidelines.
Defense counsel has informed us that Garcia sent him a letter in which he
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complains that an error was committed in not adjusting the offense level downward
pursuant to U.S.S.G. § 3B1.2, which permits a downward adjustment in the offense level
when a defendant’s participation in a criminal enterprise is not significant. However,
Garcia did not raise this issue at his sentencing hearing. Therefore, a plain error standard
applies to Garcia’s claim. However, there is no plain error here. While Garcia’s
involvement in the criminal enterprise may not have been as extensive as the other
participants, his participation was neither minimal nor minor. The record clearly shows
that Garcia supplied heroin to his co-defendants knowing that they were going to
distribute it and that he had a significant amount of heroin stored in his residence. Thus,
no error was committed by not applying § 3B1.2.
Moreover, we note that Garcia’s counsel supplied Garcia with a copy of his Anders
brief and Garcia was given time to raise any non-frivolous argument in a pro se brief. No
such brief was filed.
III.
Accordingly, we will affirm the sentence of conviction and judgment.
TO THE CLERK OF THE COURT:
Please file the foregoing Opinion.
/s/ Theodore A. McKee
Circuit Judge
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