Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
9-30-2004
USA v. Gonzalez
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3048
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"USA v. Gonzalez" (2004). 2004 Decisions. Paper 306.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3048
UNITED STATES OF AMERICA
v.
RODNEY GONZALEZ,
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal Action No. 02-cr-00062-1)
District Judge: Honorable Sylvia H. Rambo
Submitted Under Third Circuit LAR 34.1(a)
September 17, 2004
Before: ALITO, AM BRO and FISHER, Circuit Judges
(Filed : September 30, 2004)
OPINION
AM BRO, Circuit Judge
Rodney Gonzalez pled guilty to two counts of interstate travel to facilitate the
distribution of crack cocaine, in violation of 18 U.S.C. § 1952(a)(3). Though Gonzalez
timely appealed his conviction and sentence, his appellate counsel has filed an Anders
brief stating that no nonfrivolous issues exist for appeal. He has also moved to withdraw
as Gonzalez’s counsel. After reviewing the record in this case, we dismiss the appeal and
grant counsel’s motion.
Factual and Procedural History
In October 2001, the Drug Enforcement Administration, working in conjunction
with the Pennsylvania State Police, began investigating drug trafficking activities in
Cumberland County, Pennsylvania. Gonzalez was known to the authorities as a dealer of
crack cocaine.
On February 5, 2002, the Pennsylvania State Police stopped a car operated by
Gonzalez and containing one passenger, Damien Langlaise, because its windows were
visibly tinted beyond the legal limit. When the police observed evidence of drug use, they
conducted a pat-down search, which revealed approximately one ounce of crack cocaine
hidden in Langlaise’s underwear. Both men were arrested. Gonzalez later stated that he
had given Langlaise the drugs when the police stopped them.
The arrest led to an extensive investigation of Gonzalez, which revealed that
several individuals were distributing drugs for him in Carlisle, Pennsylvania. Gonzalez
admitted in a statement to investigators that he was involved in the distribution of crack
cocaine, though he disputed the alleged extent of his participation. He stated that he had
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traveled from New York to Carlisle four or five times, each time with approximately one-
half ounce of crack cocaine.
In 2002 a grand jury in Harrisburg, Pennsylvania returned an indictment charging
Gonzalez with various drug trafficking offenses, including unlawful distribution and
possession with intent to distribute crack cocaine, as well as conspiracy to distribute and
possess with intent to distribute crack cocaine. Pursuant to a plea bargain, Gonzalez was
permitted, in lieu of proceeding to trial, to plead guilty to two counts of interstate travel in
order to facilitate the distribution of crack cocaine. On October 15, 2002, Gonzalez pled
guilty to the reduced charges. On July 1, 2003, he was sentenced to 60 months
imprisonment on each count, to be served consecutively, for a total of 120 months
imprisonment.
Gonzalez appealed his sentence pro se, and counsel was appointed to represent
him. Counsel has filed an Anders brief asserting that the appeal raises no nonfrivolous
issues, and he seeks to withdraw as counsel.
Discussion
Third Circuit Local Appellate Rule 109.2(a) provides that “[w]here, upon review
of the district court record, trial counsel is persuaded that the appeal presents no issue of
even arguable merit, trial counsel may file a motion to withdraw and supporting brief
pursuant to Anders v. California, 386 U.S. 738 (1967).” In reviewing an Anders motion,
we must consider both “(1) whether counsel adequately fulfilled [Rule 109.2(a)’s]
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requirements; and (2) whether an independent review of the record presents any
nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).
Our first task, then, is to assess whether counsel satisfied his duties under Rule
109.2(a) by thoroughly examining the record in search of appealable issues and
explaining why any potential issues are frivolous. Id. While counsel “need not raise and
reject every possible claim,” he must conscientiously examine the record. Id.
Our review shows that counsel has thoroughly considered all plausible bases for
appeal, including issues that Gonzalez has waived by virtue of his guilty plea. For
example, counsel discusses at length the legitimacy of the stop of Gonzalez’s vehicle.
We are satisfied that the stop was proper. But even if it were not, Gonzalez could not
now challenge it. He was advised that by pleading guilty he would give up his right to
file any pre-trial motions, and he has not challenged the adequacy of the guilty plea
colloquy that led to the entry of his plea. Similarly, while Gonzalez now suggests that he
might have received a lesser sentence by proceeding to trial, the transcript of the plea
colloquy reveals that he was fully aware of the Government’s case against him, as well as
the legal consequences of a guilty plea.
Because counsel has submitted an adequate Anders brief, “we confine our scrutiny
to those portions of the record identified by [that brief] . . . [and] those issues raised in
Appellant’s pro se brief.” Id. at 301. Gonzales submitted a brief in response to counsel’s
Anders brief. In it he raised only one claim: ineffective assistance of counsel. We do not
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consider ineffective assistance of counsel claims on direct review. United States v.
Thornton, 327 F.3d 268, 271–72 (3d Cir. 2003).
Thus we conclude, upon “a full examination of all the proceedings,” Anders, 386
U.S. at 744, “that the attorney has provided the client with a diligent and thorough search
of the record for any arguable claim.” McCoy v. Court of Appeals of Wis., 486 U.S. 429,
442 (1988). We agree with counsel that the appeal is frivolous, and we therefore affirm
the judgment on the merits and grant counsel’s motion to withdraw.
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