Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
1-14-2008
USA v. Esquivel-Corona
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5258
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"USA v. Esquivel-Corona" (2008). 2008 Decisions. Paper 1755.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-5258
UNITED STATES OF AMERICA
v.
GABRIELE ESQUIVEL-CORONA
a/k/a JOSE
Gabriele Esquivel-Corona,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
D.C. Criminal No. 05-cr-00259-3
District Judge: Honorable Jerome B. Simandle
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 5, 2007
Before: SCIRICA, Chief Judge, AMBRO and JORDAN, Circuit Judges.
(Filed: January 14, 2008)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Gabriele Esquivel-Corona appeals his criminal sentence and conviction. We
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will affirm.
Esquivel-Corona pled guilty to a two-count indictment charging knowing
and intended conspiracy to distribute and possession with intent to distribute five hundred
or more grams of cocaine under 21 U.S.C. § 841(a)(1) and (b)(1)(B) and to possession of
a firearm during and in relation to a drug trafficking offense under 18 U.S.C. §
924(c)(1)(A). Refusing the Government’s proposed plea agreement, Esquivel-Corona
chose instead to enter an open plea of guilty.
At sentencing, defense counsel objected to a two-level guideline enhancement
based on the inclusion of certain drugs in the calculation of the offense level. The District
Court agreed, reducing the offense level by two. Defense counsel requested a sentence of
117 months at the bottom of the guideline range. The Government requested a sentence
of 131 months at the top of the range. The District Court imposed a sentence of 120
months.
Our review reveals defense counsel thoroughly considered all plausible bases for
appeal and set forth in the Anders brief why such issues were legally frivolous. Defense
counsel examined at length the guilty plea colloquy transcript, the sentencing transcript,
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Esquivel-Corona’s attorney filed a brief under Anders v. California, 386 U.S. 738
(1967), and a motion to withdraw as court-appointed counsel. Esquivel-Corona filed a
pro se brief with this Court on November 1, 2006.
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the Presentence Investigative Reports, and other documents. Defense counsel discussed
with Esquivel-Corona the proposed plea agreement, as well as his right to a jury trial, the
risks associated with trial and pleading open, and the advisory nature of the sentencing
guidelines. The guilty plea colloquy reveals that Esquivel-Corona entered his plea
knowingly, intelligently, and voluntarily, and specifically understood the consequences of
an open plea of guilty. Based on our own examination of the record, we conclude that
counsel satisfied the requirements of Third Circuit Local Appellate Rule 109.2(a) under
Anders.
As noted, Esquivel-Corona also submitted a brief. He raised three issues: 1)
violation of the Confrontation Clause in relying on a co-conspirator’s out-of-court
admission, 2) improper application of 18 U.S.C. § 924(c) because he never possessed or
carried the firearms used in the drug transaction, and 3) a defective plea (unknowing and
involuntary) because he did not personally carry or use firearms during the drug
transaction.
Esquivel-Corona cites Crawford v. Washington, 541 U.S. 36 (2004), to support his
contention that the District Court violated his Confrontation Clause rights in relying on
the out-of-court admissions of a co-conspirator during sentencing. But Crawford
involved only trial testimony and does not extend to sentencing hearings. A trial judge
may consider hearsay testimony at a sentencing hearing. Furthermore, Esquivel-Corona
pled guilty. The District Court relied on defendant’s admissions, not those of his co-
conspirator.
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Esquivel-Corona also asserts the inapplicability of § 924(c) because he never
carried or possessed the weapons during the drug transaction. But during his plea,
Esqiuvel-Corona agreed it was foreseeable that someone would bring a gun to the
transaction given the quantity of money and drugs involved and agreed firearms were
present during the transaction. Although Esquivel-Corona may not have personally
handled the guns, a conviction under § 924(c) was proper where firearms were present
and were reasonably foreseeable. Moreover, the presence of the firearms was attributable
to Esquivel-Corona as an act completed by a co-conspirator in the furtherance of the
conspiracy. Pinkerton v. United States, 328 U.S. 640 (1946).
Turning to the third issue, his attorney, as well as the court, explained the rights
and risks of pleading open to the court, to which Esquivel-Corona repeatedly replied he
understood. The court asked Esquivel-Corona if guns were present at the drug
transaction. He agreed this was so. The court asked if he agreed it was reasonably
foreseeable guns would be present at the transaction given the quantity of drugs involved.
Again, Esquivel-Corona assented. His plea was knowing and voluntary.
Accordingly, there are no non-frivolous arguments raised in this appeal.
For the foregoing reasons, we will affirm the judgment and sentence of the District
Court. Defense counsel’s motion to withdraw is granted.
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