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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

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No. 00-2361

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UNITED STATES OF AMERICA

v.

GUI FENG CHEN aka FONG aka AH FONG aka LA TI KOY

GUI FENG CHEN, Appellant

___________ Appeal from the United States District C ourt for the District of New Jersey (D.C. Crim. No. 98-cr-00746) District Judge: Honorable John C. Lifla nd

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Submitted Under Third Circuit LAR 34.1( a) February 11, 2002 Before: MANSMANN, McKEE and BARRY, Circuit Judges.

(Filed: February 15, 2002)

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MEMORANDUM OPINION OF THE COURT

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MANSMANN, Circuit Judge.

Gui Feng Chen pled guilty, pursuant to a plea agreement, to one count of conspiring to smuggle aliens into and within the Un ited States in violation of 8 U.S.C.  1324 and 18 U.S.C.  371, and one count of kidnaping in connection with alien smuggling in violation of 18 U.S.C.  1201(a), (c) and 2. The District Court sentenced Chen to a 60-month term of imprisonment on the cons piracy count and a 108- month termof imprisonment on the kidnaping count, the terms t o run concurrently.

Chen filed a timely notice of appeal, but his counsel seeks leav e to withdraw under Anders v. California, 386 U.S. 738 (1967), claiming that Chen 's appeal is wholly frivolous. Pursuant to Third Circuit Local Appellate Rule 109. 2(a), Chen filed a pro

se supplemental brief. We conclude that counsel's Anders brief s atisfies the requirements outlined in Smith v. Robbins, 528 U.S. 259, 285 (2000), and United States v. Marvin, 211 F.3d 778, 780-81 (3d Cir. 2000). Because counsel for Ch en, having "thoroughly reviewed the transcripts in this matter as well as the applicabl e case law," was unable to identify any issue of even arguable merit, and because we do not find merit in either of the issues raised in Chen's pro se submission, we will grant c ounsel's motion to withdraw and will affirm the judgment in a criminal case.

I. The facts and procedural history underlyi ng this matter are well-known to the parties. Accordingly, we turn to the substance of counsel's Anders brief and to the issues raised by Chen. Because Chen pled guilty pursuant to a pl ea agreement, Chen's attorney focuses attention on the agreement itself and parti cularly on the circumstances surrounding the actual plea. Counsel notes that th e plea colloquy was searching and covered all aspects of the matters with which Chen was charged. The District Court reviewed the consequences of the guilty plea, Chen' s choice to plead guilty and his understanding of what the plea entailed. Chen was advised of the potential penalties associated with the guilty plea, the requirements o f the Sentencing Guidelines, and the nature of the constitutional rights waived by enter ing a guilty plea. Chen then pled guilty to the two counts, admitting in detail the factual underpinnings of each. At the conclusion of these proceedings the District Court found Chen fully competent and capable of entering an informed plea. The District Court was also satisfied that Chen understood the nature of the charges against him an d the consequences of the plea. Insum, the District Court and Chen's attorney were sa tisfied that the plea

was knowing, voluntary, supported by Chen's admissions of fact, and in all respects compliant with Fed. R. Crim. P. 11. We do not find anything in th e record before us to contradict this assessment. Chen's attorney also addresses the senten ce imposed, discussing in some detail objections raised by Chen to the PSR and the District Court's disposition of those objections. According to Chen's attorney, Chen rec eived a sentence at the bottom of the applicable range, "that comported fully with the Se ntencing Guidelines." Counsel for Chen advises us that his review of the sentencing p roceedings did notreveal any nonfrivolous ground for appeal. In his pro se brief, Chen raises two issu es. He focuses first on his medical status. At sentencing Chen requested a downward de parture pursuant to U.S.S.G.  5H1.4 based on his having been diagnosed with a pep tic ulcer and a precancerous lesion. The District Court declined to depart stating that downward departure based on medical reasons was not warranted here "where the defendant appears to have a treatable condition," and "the Bureau of Prisons is able to p rovide suitable care." In his pro se brief, Chen states that he has not, in fact, receiv ed suitable care. Chen does not challenge the calculation o f his sentence per se. Even had he raised a sentencing claim, we lack jurisdiction to review the District Court's discretionary decision not to grant a downward depa rture. United States v. Denardi, 892 F.2d 269, 270-72 (3d Cir. 1989). In any event, Che n's complaint regarding medical treatment is not cognizable here. As the governmen t points out, this claim should be addressed in administrative proceedings with the Bu reau of Prisons. See 28 C.F.R.  542.10 et. seq. To date, Chen has not pursued this avenue of relief. Chen also objects to a two-level adjustme nt based on his role in the offense. This objection stems from a discrepancy b etween the language of U.S.S.G.  3B1.1(c) which provides for a two-level increase "[ i]f the defendant was an organizer, leader, manager, or supervisor in a criminal activi ty," and the following language in the PSR: "The Defendant assumed an aggravating role yet less than an organizer, leader,manager, or supervisor. Pursuant to U.S.S.G.  3B1.1(c), the offense is

increased two levels." (Emphasis supplied.) While the discrepan cy highlighted does exist, Chen did not object to the language used in the PSR, and, in fact, stipulated to a two level upward adjustment based on his role in the offense. The s tipulation, made part of the plea agreement, reads: "Gui Feng Chen played a managemen t/supervisory role in this offense, which involved five or more conspirators." Despite the inaccurate rendering of section 3B1.1(c) in the PSR, Chen received exactly that to which he stipulated and may not now attempt to repudiate that stipulation. United Stat es v. Cianci, 154 F.3d 106, 109 (3d Cir. 1998). The conduct set forth in the plea agreement is more than sufficient to support the upward enhancement.

II. Defense counsel advises us, after a thoro ugh review of the record and the transcripts, that he has not found any non-frivolou s issue for appeal. Our own examination of the record, the transcripts, and Che n's pro se submission, does not reveal any issue of merit. As a result, we will grant cou nsel's motion to withdraw and will affirm the judgment in a criminal case.

_____________________________________ TO THE CLERK:

Please file the foregoing opini on.

_ ________/s/ Carol Los Mansmann, ____ Circuit J udge