Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
5-26-2005
USA v. De La Cruz
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2534
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"USA v. De La Cruz" (2005). 2005 Decisions. Paper 1127.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2534
UNITED STATES OF AMERICA
v.
WILFREDO DE LA CRUZ,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 03-cr-00807)
(District Judge: Honorable John C. Lifland)
Submitted Under Third Circuit LAR 34.1(a)
March 10, 2005
Before: NYGAARD, McKEE and RENDELL, Circuit Judges.
(Filed May 26, 2005)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Wilfredo Delacruz was charged with one count of importation of more than one
kilogram of heroin, in violation of 21 U.S.C. §§ 952(a) and 960(b)(1)(A) and 18 U.S.C. §
2. He pled guilty on November 13, 2003. Subsequently, he was sentenced to a term of
eighty months’ imprisonment. Counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), requesting permission to withdraw because, after a conscientious
review of the record, he is unable to find any non-frivolous issues for appeal. Delacruz
was given notice of his counsel’s intent to withdraw and has not filed a pro se brief. We
have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). For the reasons stated
below, we will grant counsel’s motion to withdraw and affirm the District Court’s
judgment of sentence.
Evaluation of an Anders brief requires a two-fold inquiry: (1) whether counsel has
thoroughly examined the record for appealable issues and has explained why any such
issues are frivolous; 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). Where
the Anders brief appears adequate on its face, our review is limited to the portions of the
record identified in the brief, along with any issues raised by an appellant in a pro se brief.
Id. at 301. We conclude that counsel’s Anders brief is adequate and, in the absence of a
pro se brief by the appellant, it will guide our independent review of the record.
I.
Counsel’s brief identifies three issues as potentially non-frivolous: (1) whether the
plea hearing was properly conducted; (2) whether the sentencing proceeding was properly
conducted; and (3) whether the sentence imposed by the District Court was an appropriate
application of the Sentencing Guidelines.
2
After reviewing the record, counsel has concluded that the plea hearing fully
advised Delacruz of the nature of the charges against him, his legal rights, the mandatory
minimum penalty and the maximum possible penalty for the offense, and the
consequences of his entering a guilty plea. As part of his plea agreement, Delacruz
stipulated that he knowingly and voluntarily waived “the right to file any appeal . . .
which challenges the sentencing court’s determination or imposition of the offense level,
if the total offense level determined by the court is equal to or less than 25.”
At the sentencing proceeding, the District Court made an upward adjustment to
Delacruz’s Offense Level for the stipulated three kilograms of heroin. The Court then
capped Delacruz’s Offense Level at 30 and reduced it by two levels based on the finding
that he was a minor participant and three levels for his acceptance of responsibility. This
amounted to an Offense Level of 25, which pursuant to Delacruz’s plea agreement
triggered his waiver of appeal. Pursuant to a “substantial assistance” motion by the
United States under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, the District Court then
departed from the mandatory minimum sentence of 120 months’ imprisonment and
sentenced Delacruz to a sentence of eighty months’ imprisonment, which is within the
applicable guideline range of seventy to eighty-seven months for an Offense Level of 25.
Accordingly, counsel has concluded that there are no non-frivolous for Delacruz
to appeal. The plea and sentencing proceedings satisfied all constitutional and procedural
requirements and Delacruz was competent and able to comprehend both proceedings, the
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government’s case against him, and the legal consequences of entering a guilty plea.
We find that counsel for Delacruz has thoroughly considered all plausible bases for
appeal, including issues that Delacruz has waived by virtue of his guilty plea.1
II.
Our independent review of the record reveals no non-frivolous arguments that
could possibly support an appeal and we are satisfied that all the requirements of Anders
have been met. Accordingly, we will AFFIRM the judgment of the District Court and, in
a separate order, GRANT counsel’s motion to withdraw.
1
Delacruz has challenged his sentence under the Supreme Court’s recent decision
in United States v. Booker, __ U.S. __, 160 L. Ed. 2d 621, 125 S. Ct. 738 (2005).
However, Delacruz knowingly and voluntarily waived “the right to file any appeal . . .
which challenges the sentencing court’s determination or imposition of the offense level,
if the total offense level determined by the court is equal to or less than 25.” Therefore,
he cannot now attempt to take advantage of the Supreme Court’s decision in Booker. See
United States v. Lockett, No. 04-2244, 2005 U.S. App. LEXIS 7784, at *17 (3d Cir. May
5, 2005) (“We hold that where a criminal defendant has voluntarily and knowingly
entered into a plea agreement in which he or she waives the right to appeal, the defendant
is not entitled to resentencing in light of Booker.”).
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