2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2012/1010NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 11

- 2587

_____________ UNITED STATES OF AMERICA

v. CARLOS RODRIGUEZ

- NORIEGA, A ppellant

______________ APPEAL FROM THE UNITED STATES DISTRICT COURT

F OR THE DISTRICT OF NEW JERSEY (D.C. Crim. No. 11

- cr - 00085

- 001) District Judge: Honorable Renee M. Bumb

____________ Submitted Under Third Circuit LAR 34.1(a)

April 16, 2012

___________ _ Before: VANASKIE, ALDISERT and BARRY, Circuit Judges

(Opinion Filed: May 11, 2012 )

____________ OPINION

____________ BARRY, Circuit Judge Defendant Carlos Rodriguez

- Noriega (―Rodriguez‖) pleaded guilty pursuant to a plea agreement, waiving his right to appeal a sentence within or below an agreed

- upon guideline range. The District Court sentenced Rodriguez within this range.2

Notwithstanding his waiver, Rodriguez appealed. His counsel, J. Michael Farrell, has moved to withdraw and has filed a brief pur suant to Anders v. California , 386 U.S. 738 (1967) , and Third Circuit L.A.R. 109.2(a), asserting that there are no nonfrivolous issues on appeal. We will affirm the judgment of sentence and grant the motion to withdraw

. I. BACKGROUND
A n undercover inv estigation by the Drug Enforcement Agency resulted in Rodriguez ‘s arrest and plea of guilty to conspiracy to possess with intent to distribute 500 grams or more of cocaine , in violation of 21 U.S.C. § 846. As part of th e plea agreement, Rodri g uez waived h is right to appeal a sentence within or below the guideline range result ing from a total offense level of 25. He reserved the right to challenge the District
C ourt‘s determination of his criminal history category

. On February 9, 2011, the District C ourt conducted a thorough plea colloquy with the assistance of an interpreter

. It determined , among other things, that Rodriguez was not under the influence of drugs, alcohol, or a debilitating mental condition, and that he had reviewed the charges and plea ag reement with counsel, aided by an interpreter. The
Court advised Rodriguez that the stipulations in the plea agreement, as well as the

s entencing g uidelines, we re not binding on the Court, and that he could be sentenced anywhere from the mandatory minimum of 5 years to the maximum sentence of 40 years. Finally, the Court informed Rodriguez that, by pleading guilty, he would lose important rights, and explained the waive r of his right to appeal. Rodriguez stated that he understood all of this and provided a factual basis for his plea. The Court accepted the3

plea after finding that it was knowing and voluntary.
S entencing took place on June 2, 2011. Defense counsel argued that Rodriguez was entitled to a downward adjustment of 2 levels under U.S.S.G. § 3B1.2(b) for his minor role in the offense, and to a downward variance for the same reason. Neither the plea agreement nor the PSR had mentioned § 3B1.2(b). In an abundance of caution, however, the District Court considered Rodriguez‘s argument for an ad justment under § 3B1.2(b) and a variance, denying both because Rodriguez was not merely a minor courier. Rather, the Court concluded, Rodriguez had an ongoing employment relationship with the main trafficker, he was aware of the scope of the conspiracy, h e transported a substantial amount of drugs, and his presence at meetings made it appear that he was protecting the main trafficker. The Court ultimately agreed with the PSR‘s application of the safety valve provision of U.S.S.G. § 5C1.2 and with its calc ulation of the guideline range as 57 to 71 months, based on an offense level of 25 and criminal history category of I. After considering the 18 U.S.C. § 3553 (a) factors, the C ourt stated that the case ―cries out for a guideline sentence . . . [and] that a nything other than a guideline sentence really does defeat all of the purposes of [§] 3553.‖ ( App

. 1 27a). It then sentenced Rodriguez to 57 months‘ imprisonment and 5 years‘ supervised release

— the bottom of th e applicable range. This appeal followed.
II. ANALYSIS 1

1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.4

Under Anders , if appellate counsel ―finds his 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 referr ing to anything in the record that might arguably support the appeal.‖ 386 U.S. at 744; see also Third Circuit L.A.R. 109.2(a). ―The Court‘s inquiry when counsel submits an Anders brief is thus 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). With respect to the first requirement, counsel must ― satisfy the court that [ he ] has thoroughl y examined the record in search of appealable issues, and

. . . explain why the issues are frivolous .‖ Id . He need not address every possible claim but must at least make a ―conscientious examination

. ‖ Id

. (internal quotation omitted). Regarding the

se cond requirement, the Court should generally confine its independent review to those portions of the record identified by an adequate Anders brief. 2 See id . at 301. An appeal

― is frivolous where none of the legal points are arguable on their merits.‖ Id

. (internal quotation omitted).
C ounsel has satisfied his obligation by conscientious ly review ing the record for any appealable errors , finding none. He summarize d the plea and sentencing hearings in detail, and conclude d that the appellate waiver prec ludes any appeal. Even if it did not,

2 Rodri g uez did not file a pro se brief.5

he continue d , the sole possible issue

— the District Court‘s rejection of Rodriguez‘s argument for a downward adjustment or variance based on his allegedly minor role in the conspiracy

— lacks merit.
Our independent rev iew confirms this conclusion

. The District C ourt conducted a thorough plea allocution that complied with the requirements of Rule 11(b). See United States v. Schweitzer , 454 F.3d 197, 202

– 03 (3d Cir. 2006). The record supports its finding that Rodrig uez ‘s guilty plea was knowing, voluntary, and supported by a
sufficient factual basis. T he C ourt explained to Rodriguez that , by pleading guilty , he would waive his right to appeal a sentence within the guideline range based on an offense level of 25. H e re plied that he understood. Rodri g uez was sentenced within this guideline range. Moreover, because the C ourt applied a criminal history category of I, Rodrig uez has no basis to challenge its determination of his criminal history category

— the o n l y oth e r iss ue his waiver preserved for appeal

. Finally, there are no ― ̳unusual circumstances‘‖ here that require invalidating the waiver to prevent a miscarriage of justice. United States v. Jackson , 523 F.3d 234, 244 (3d Cir. 2008) (quoting United States v. Khatta k , 273 F.3d 557, 562 (3d Cir. 2001) )

. IV. CONCLUSION
Because we find no arguable merit to the appeal , we will grant counsel‘s motion to withdraw and affirm the judgment of sentence. U nder Third Circuit L.A.R. 109.2 (b), the issues presented in this app eal lack legal merit for purposes of counsel filing a petition for

a writ of certiorari to the Supreme Court of the United States

.