2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-15-2002

USA v. Chen

Precedential or Non-Precedential:

Docket 0-2361

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Chen" (2002). 2002 Decisions. Paper 126.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/126
 NOT PRECEDENTIAL

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 00-2361 

 ___________ 

 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 Court 

 for the District of New Jersey 

 (D.C. Crim. No. 98-cr-00746) 

 District Judge: Honorable John C. Lifland 

 ___________ 

 Submitted Under Third Circuit LAR 34.1(a) 

 February 11, 2002 

 Before: MANSMANN, McKEE and BARRY, Circuit Judges. 

 (Filed: February 15, 2002) 

 ___________ 

 MEMORANDUM OPINION OF THE COURT 

 ___________ 

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 United 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 conspiracy count and a 108-

month term 
of imprisonment on the kidnaping count, the terms to run concurrently. 

Chen filed a 

timely notice of appeal, but his counsel seeks leave 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 satisfies 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 Chen, having "thoroughly 

reviewed the 

transcripts in this matter as well as the applicable 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 counsel's motion to 

withdraw and will 

affirm the judgment in a criminal case. 

 I. 

 The facts and procedural history underlying 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 plea agreement, Chen's 

attorney 

focuses attention on the agreement itself and particularly on the 

circumstances 

surrounding the actual plea. Counsel notes that the 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 of the Sentencing 

Guidelines, and the 

nature of the constitutional rights waived by entering 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 and the consequences of 

the plea. In 
sum, the District Court and Chen's attorney were satisfied 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 the record before us to 

contradict this 

assessment. 

 Chen's attorney also addresses the sentence 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 received a sentence at the 

bottom of the 

applicable range, "that comported fully with the Sentencing Guidelines." 

Counsel for 

Chen advises us that his review of the sentencing proceedings did not 

reveal any nonfrivolous ground for appeal. 

 In his pro se brief, Chen raises two issues. He focuses first 

on his medical 

status. At sentencing Chen requested a downward departure pursuant to 

U.S.S.G. 

5H1.4 based on his having been diagnosed with a peptic 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 provide suitable care." 

In his pro se 

brief, Chen states that he has not, in fact, received suitable care. 

 Chen does not challenge the calculation of 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 departure. United States 

v. Denardi, 892 

F.2d 269, 270-72 (3d Cir. 1989). In any event, Chen's complaint regarding 

medical 

treatment is not cognizable here. As the government points out, this 

claim should be 

addressed in administrative proceedings with the Bureau 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 adjustment based on his role in 

the 

offense. This objection stems from a discrepancy between 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 activity," 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 discrepancy 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 stipulation, made part 

of the plea 

agreement, reads: "Gui Feng Chen played a management/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 States 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 thorough review of the 

record and the 

transcripts, that he has not found any non-frivolous issue for appeal. 

Our own 

examination of the record, the transcripts, and Chen's pro se submission, 

does not reveal 

any issue of merit. As a result, we will grant counsel's motion to 

withdraw and will 

affirm the judgment in a criminal case. 

 

_____________________________________ 

TO THE CLERK: 

 Please file the foregoing opinion. 

 _________/s/ Carol Los 

Mansmann, ____ 

 Circuit Judge