NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________
No. 11-3024
_________________
UNITED STATES OF AMERICA
v.
RAFAEL SANCHEZ-SANCHEZ,
a/k/a Rafael Hernandez-Shanchez,
a/k/a Rafael Hernandez-Martin
a/k/a Rafael Hernandez-Hernandez
a/k/a Rafael Hernandez
Rafael Sanchez-Sanchez
Appellant
_________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 10-cr-00710-001)
District Judge: Honorable Stewart Dalzell
_________________
Submitted Under Third Circuit LAR 34.1(a)
September 19, 2012
Before: AMBRO, GREENAWAY, JR., and TASHIMA,* Circuit Judges
(Filed: October 18, 2012)
_________________
OPINION
*
Hon. A. Wallace Tashima, Senior Judge, United States Court of Appeals for the Ninth
Circuit, sitting by designation.
_________________
TASHIMA, Circuit Judge
Rafael Sanchez-Sanchez (“Sanchez”) appeals the judgment of conviction and the
sentence imposed by the District Court. Sanchez‟s counsel has moved to withdraw
pursuant to Anders v. California, 386 U.S. 738 (1967), and Sanchez has declined to
submit a pro se brief. We have jurisdiction under 28 U.S.C. § 1291. For the reasons set
forth below, we will grant counsel‟s motion and affirm the judgment of the District Court.
I.
Sanchez, a native and citizen of the Dominican Republic, first entered the United
States in 1993. After failing to appear for an immigration hearing, he was ordered to be
removed from the country in absentia. In 1994, Sanchez was arrested by Philadelphia
police and charged with a felony drug offense; the following year he was deported. In
1999 Sanchez was again arrested in the United States and charged with several felony
drug counts, to which he pleaded guilty. After serving a term of imprisonment, Sanchez
was again deported.
In April 2010, Sanchez was arrested by Philadelphia police for possession of
heroin with intent to deliver, and in June 2010 he was sentenced to 6 to 12 months‟
imprisonment. While in local custody, Sanchez was interviewed by federal agents, and he
admitted that he had previously been deported and had not received permission from the
United States government to reenter the country.
2
In October 2010, a grand jury returned an indictment charging Sanchez with one
count of reentry of a removed alien in violation of 8 U.S.C. § 1326(a) and (b)(2). Sanchez
pleaded guilty to the count without the benefit of a written plea agreement. The District
Court imposed a sentence of 48 months‟ imprisonment, to run consecutively to a sentence
imposed in the Philadelphia Court of Common Pleas for an unrelated offense; three years
of supervised release; and a fine of $1,000.
Sanchez timely appealed, and his counsel later filed a motion to withdraw and
supporting brief in accordance with Anders and Third Circuit Local Appellate Rule
109.2(a).
II.
When the defendant‟s counsel submits an Anders brief, this Court‟s inquiry is
“twofold: (1) whether counsel adequately fulfilled the rule‟s 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).
To fulfill the first part of the inquiry, counsel must satisfy the court that she has
thoroughly examined the record in search of appealable issues and explain why those
issues are frivolous. Id. “Where the Anders brief initially appears adequate on its face,
the proper course „is for the appellate court to be guided in reviewing the record by the
Anders brief itself.‟” Id. at 301 (quoting United States v. Wagner, 103 F.3d 551, 553 (7th
Cir. 1996)).
3
Here, counsel‟s brief identifies several potential issues in the record: the
jurisdiction of the District Court; the validity of the guilty plea; the legality of the
sentence; the District Court‟s application of a 16-level enhancement in calculating the
advisory sentencing range under the U.S. Sentencing Guidelines; the absence of a fast-
track program; and the substantive and procedural reasonableness of the sentence. We
agree with Sanchez‟s counsel that all of these issues, if presented on appeal, would be
frivolous. The District Court had jurisdiction of the underlying offense under 18 U.S.C.
§ 3231; as counsel notes, the indictment adequately charged a violation of 8 U.S.C.
§ 1326(a) by setting forth all essential elements of the offense. Moreover, the record
reveals that Sanchez‟s plea was valid: it was entered into knowingly and voluntarily, with
the benefit of counsel, and the District Court fully complied with Rule 11 of the Federal
Rules of Criminal Procedure. See United States v. Khattak, 273 F.3d 557, 563 (3d Cir.
2001). Sanchez informed the District Court that he understood his rights, but chose to
waive those rights and plead guilty to the illegal reentry charge.
The sentence was likewise legally valid. The maximum sentence for an alien
previously removed from the United States after a conviction for commission of an
aggravated felony is 20 years. 8 U.S.C. § 1326(b)(2). Because Sanchez had previously
been removed from the United States following a conviction for various drug offenses
that qualify as aggravated felonies, see 8 U.S.C. § 1101(a)(43)(B), his maximum sentence
was therefore 20 years, far greater than the four-year sentence he received.
4
Sanchez received a 16-level enhancement to his Guidelines offense level pursuant
to U.S.S.G. § 2L1.2, because Sanchez previously had been deported after being
convicted of a drug trafficking felony and sentenced to a 36-month term of imprisonment,
i.e., to a term that exceeded 13 months. See U.S.S.G. § 2L1.2(b)(1)(A)(i). At sentencing,
Sanchez‟s counsel argued that § 2L1.2(b)(1)(A)(i) was an arbitrary and irrational rule
unmoored from empirical research or data, and that the resulting increase in Sanchez‟s
Guidelines range was thus greater than necessary to achieve the objectives of sentencing.
But in a factually similar case, we rejected these same arguments. See United States v.
Lopez-Reyes, 589 F.3d 667, 671 (3d Cir. 2009).
Sanchez‟s counsel also argued at sentencing that Sanchez‟s Guidelines range was
too severe in light of the fact that his Guidelines range would have likely been lower in a
fast-track district. Some federal judicial districts have fast-track programs which enable
defendants charged with illegal reentry to receive lower sentences in exchange for
waiving certain rights. United States v. Arrelucea-Zamudio, 581 F.3d 142, 145-46 (3d
Cir. 2009). The Sentencing Guidelines permit a district court to depart downward by up
to four levels pursuant to a fast-track program. U.S.S.G. § 5K3.1. Sanchez, however,
was not prosecuted in a fast-track district and was thus ineligible for this downward
departure. We have held that “a sentencing judge has the discretion to consider a
variance under the totality of the § 3553(a) factors (rather than one factor in isolation) on
the basis of a defendant‟s fast-track argument, and that such a variance would be
5
reasonable in an appropriate case.” Arrelucea-Zamudio, 581 F.3d at 149. But in this case
the District Court properly exercised its discretion not to grant a downward variance; it
noted that fast-track programs exist mainly to address a problem not present in the
Eastern District of Pennsylvania – i.e., huge immigration caseloads, including illegal
reentry cases – and found that, even if a fast-track program did exist in that district,
Sanchez was not a likely candidate for a downward variance.
The final possible issue counsel identifies is the substantive and procedural
reasonableness of Sanchez‟s sentence. We review sentences “for reasonableness with
regard to the factors set forth in 18 U.S.C. § 3553(a).” United States v. Bungar, 478 F.3d
540, 542 (3d Cir. 2007). “Review for procedural reasonableness focuses on whether the
District Court committed any error in calculating or explaining the sentence.” United
States v. Lychock, 578 F.3d 214, 217 (3d Cir. 2009). Review for substantive
reasonableness requires that we “take into account the totality of the circumstances,
including the extent of any variance from the Guidelines.” Gall v. United States, 552
U.S. 38, 51 (2007). “Absent procedural error, we will affirm the sentencing court „unless
no reasonable sentencing court would have imposed the same sentence on that particular
defendant for the reasons the district court provided.‟” United States v. Doe, 617 F.3d
766, 770 (3d Cir. 2010) (quoting United States v. Tomko, 562 F.3d 558, 568 (3d Cir.
2009)). Here, the sentence was both procedurally and substantively reasonable. The
record reflects that the District Court, after considering the arguments and the factors
6
required by 18 U.S.C. § 3353(a), sentenced the defendant to 48 months‟ imprisonment, at
the lower end of the advisory Guidelines range. We cannot say that no reasonable
sentencing court would have imposed this sentence in this case.
III.
We conclude that counsel has adequately shown that there are no nonfrivolous
appealable issues, and our independent review of the record confirms that there are no
appealable issues of merit. Accordingly, counsel‟s motion for leave to withdraw is
granted, and the District Court‟s judgment and sentence will be affirmed.
7