Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
1-23-2006
USA v. Rodriguez
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4560
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4560
UNITED STATES OF AMERICA
v.
ALBERTO RODRIGUEZ,
Appellant
On Appeal from the United States District Court
for the District of Delaware
(D.C. Criminal Action No. 04-cr-00047-2)
District Judge: Honorable Kent Jordan
Submitted Under Third Circuit LAR 34.1(a)
January 12, 2006
Before: BARRY, AMBRO and ALDISERT, Circuit Judges
(Filed January 23, 2006)
OPINION
AMBRO, Circuit Judge
I.
On August 17, 2004, Alberto Rodriguez pled guilty in the United States District
Court for the District of Delaware to two counts of conspiracy to distribute and attempted
possession with intent to distribute more than five kilograms of cocaine in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. Although the Presentence Report calculated the
applicable range of punishment under the Sentencing Guidelines as 70 to 87 months in
prison, the Government filed a motion for a downward departure under U.S.S.G. § 5K1.1
to take account of Rodriguez’s substantial assistance. Rodriguez requested a downward
adjustment under U.S.S.G. § 3B1.2 for his alleged minor role in the conspiracy. The
District Court granted the Government’s motion for a downward departure, denied
Rodriguez’s request for a downward adjustment, and sentenced him to 40 months in
prison. Rodriguez now appeals.
Counsel for Rodriguez has moved this Court to allow him to withdraw from this
case, and has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that Rodriguez’s only possible ground of appeal is a challenge to the District Court’s
refusal to depart downward due to his alleged minor role, a decision counsel contends we
lack jurisdiction to review. Counsel and the Government are in agreement that
Rodriguez’s appeal is frivolous. Rodriguez has not filed a pro se response to counsel’s
Anders brief, nor has he requested resentencing in light of United States v. Booker, __
1
U.S. __, 125 S. Ct. 738 (2005). Because we agree that this appeal presents no non-
frivolous issues, we affirm the judgment of conviction and sentence and grant counsel’s
motion to withdraw.1
II.
In Anders, the Supreme Court stated:
[Counsel’s] role as advocate requires that he support his
client’s appeal to the best of his ability. Of course, if counsel
finds his [client’s] case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court
and request permission to withdraw. That request must,
however, be accompanied by a brief referring to anything in
the record that might arguably support the appeal. A copy of
counsel’s brief should be furnished the indigent and time
allowed him to raise any points that he chooses; the court —
not counsel — then proceeds, after a full examination of all
the proceedings, to decide whether the case is wholly
frivolous.
386 U.S. at 744. When preparing an Anders brief, counsel has two duties: “(1) to satisfy
the court that counsel has thoroughly examined the record in search of appealable issues,
and (2) to explain why the issues are frivolous.” United States v. Youla, 241 F.3d 296,
300 (3d Cir. 2001). Our analysis begins with an examination of the brief to determine
whether these requirements are met, and extends to “an independent review of the record”
to determine if the case “presents any nonfrivolous issues.” Id.
1
The District Court had subject matter jurisdiction over this case under 18
U.S.C. § 3231, and we have jurisdiction over the appeal under 28 U.S.C. § 1291 and 18
U.S.C. § 3742.
2
III.
Although we conclude, for the reasons noted below, that counsel has not satisfied
his obligation of properly identifying the issues on appeal and correctly explaining why
they are frivolous, we believe this error is harmless because the issue actually raised by
this appeal is frivolous. Rodriguez has never raised any question about his guilt or the
knowing and voluntary nature of his plea, and we cannot locate any errors in the record
that could conceivably give rise to such claims. Rather, as counsel states in his brief,
Rodriguez’s sole concern after his sentencing was the District Court’s refusal to grant his
request for a minor role downward adjustment, and Rodriguez instructed his attorney to
file a notice of appeal on this basis. In his brief, counsel argues that the District Court’s
ruling denied a “downward departure,” and that we therefore lack jurisdiction to review
that ruling under 18 U.S.C. § 3742(a). See, e.g., United States v. Minutoli, 374 F.3d 236,
239-40 (3d Cir. 2004) (“It is well-established in this Court that we lack jurisdiction to
review the merits of a district court’s discretionary decision to refuse a downward
departure under the Sentencing Guidelines once we determine that the district court
properly understood its authority to grant a departure.”); United States v. Denardi, 892
F.2d 269, 271-72 (3d Cir. 1989) (same). In fact, as the Government points out in its brief,
Rodriguez requested a downward adjustment of his Guidelines range under § 3B1.2, not a
departure from the Guidelines, and clearly we have jurisdiction to review the District
Court’s calculation of the Guidelines range. See 18 U.S.C. § 3742(a)(2) (allowing a
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defendant to appeal a sentence that “was imposed as a result of an incorrect application of
the sentencing guidelines”); Minutoli, 374 F.3d at 238 n.1 (reviewing a district court’s
refusal to grant a minor role downward adjustment under § 3B1.2 and citing cases).
By contending that the only issue on appeal is the District Court’s denial of a
downward departure, and that the issue is frivolous because we lack jurisdiction to
consider such an appeal, counsel has not satisfied his duty of properly identifying the
issues on appeal and correctly explaining why they are frivolous. The Government’s brief
convinces us, however, that counsel’s error is harmless because the ground on which
Rodriguez does appeal — the District Court’s refusal to grant a downward adjustment
under § 3B1.2 — is frivolous.
At the sentencing hearing, Rodriguez’s counsel conceded that Rodriguez and his
two co-conspirators were “partners[]” in the criminal enterprise, that Rodriguez was
recruited into the partnership by the first co-conspirator to help secure funding, and that
Rodriguez recruited the third co-conspirator. Rodriguez’s counsel argued that there was
an understood “pecking order” within the conspiracy (presumably based on who recruited
whom), but expressly declined to present any evidence of this and did not dispute the
Government’s statements that no member had the power to terminate another, that
Rodriguez was the sole link between the other two partners, and that they functioned as
equals. Indeed, counsel stated that Rodriguez and the Government were “pretty much
. . . in agreement the facts are as they are.” Based on these concessions, and our
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independent review of the record, we discern no basis on which Rodriguez could satisfy
his burden of proving that his “involvement, knowledge and culpability were materially
less than those of other participants.” United States v. Brown, 250 F.3d 811, 819 (3d Cir.
2001) (internal quotation marks omitted). His claim “lacks an arguable basis either in law
or in fact,” and is therefore frivolous. Neitzke v. Williams, 490 U.S. 319, 325 (1989).2
IV.
For the foregoing reasons, we affirm the judgment of conviction and sentence. We
also grant Rodriguez’s counsel’s motion to withdraw.
2
Although we generally remand pre-Booker sentences to the District Court for
resentencing, see United States v. Davis, 407 F.3d 162, 165 (3d Cir. 2005), we do so only
when a defendant affirmatively requests such a remand. See id. at 166 (“Appellants have
been directed to state whether they wish to challenge their sentences under Booker. For
those who do not, we consider the appeal on its merits.”). Because Rodriguez has not
requested resentencing in light of Booker, a remand is not warranted in this case.
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