NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 16-2891

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UNITED STATES OF AMERICA

v.

JOSE RAMOS, 

 Appellant 

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

D. C. Criminal No. 1-15-cr-00257-001

District Judge: Honorable Sylvia H. Rambo

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Submitted under Third Circuit LAR 34.1(a)

on January 26, 2017

Before: CHAGARES, RESTREPO and ROTH, Circuit Judges

(Opinion filed: March 6, 2017)

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OPINION*

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ROTH, Circuit Judge

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Jose Ramos was sentenced to forty-six months of incarceration for illegally reentering the United States after having been convicted of an aggravated felony. On 

appeal, his counsel seeks to withdraw pursuant to Third Circuit Local Appellate Rule 

109.2 and Anders v. California,

1 because counsel has not been able to identify any viable 

issues on which to base an appeal. Permission to withdraw will be granted, and the 

District Court’s order affirmed.

I. Background

In March 2000, Ramos, a citizen of Guatemala, unlawfully entered the United 

States from Mexico. In August 2008, Ramos was convicted of petit larceny in Virginia 

in relation to the theft of a bicycle. In July 2009, Ramos was convicted in the District of 

Columbia of attempted distribution of cocaine. In December 2010, he was removed to 

Guatemala. As part of the removal process, Immigration and Customs Enforcement 

served Ramos with Immigration Form I-294, advising him that he was prohibited from 

entering the United States because he had been found to be inadmissible due to his 

aggravated felony convictions under Section 212 of the Immigration and Nationality Act, 

8 U.S.C. § 1182.

Ramos then unlawfully re-entered the United States. On October 7, 2015, he 

pleaded guilty to simple assault in relation to a domestic incident in Pennsylvania. The 

Franklin County Court of Common Pleas imposed a sentence of time served, with 

immediate release to immigration authorities. On October 28, 2015, a grand jury indicted 

 

1 386 U.S. 738 (1967).
3

Ramos for illegally re-entering the United States after having been convicted of an 

aggravated felony (namely, his 2008 conviction). On January 13, 2016, Ramos appeared 

before the District Court to enter a guilty plea. However, because he was skeptical that 

his petit larceny was an aggravated felony, he declined to plead on that date, and the case 

was set for trial in February. On February 8, 2016, Ramos reversed course again and 

pleaded guilty, while reserving the right to challenge whether he had a conviction for an 

aggravated felony. In the course of conducting the guilty plea colloquy, the District 

Court ensured that Ramos understood the nature of the proceeding and that his plea was 

voluntary. Next, the Court proceeded to cover the considerations for accepting a guilty 

plea that are outlined in Rule 11 of the Federal Rules of Criminal Procedure. The Court 

ultimately accepted Ramos’s plea.

A presentence report was prepared, recommending forty-six to fifty-seven months’ 

imprisonment. Ramos filed objections to the presentence report. He sought a downward 

departure based upon an overstatement of his criminal history; he argued that he had not 

in fact committed the assault to which he had pleaded guilty in 2015. He also requested a 

downward variance based upon the government’s failure to move for a departure under 

Section 5K3.1 of the Guidelines for the early disposition or fast track program. The 

government filed a response arguing that Ramos’s criminal history was not overstated 

and explaining that the fast track program was not offered to Ramos because he had 

waited until the eve of trial to plead guilty, which caused the expenditure of significant 

government resources. On June 8, 2016, the District Court held a sentencing hearing. 

After considering Ramos’s requests for both downward departure and variance, the 
4

District Court imposed a sentence at the bottom of the advisory Guidelines range, fortysix months.

Ramos appealed. Counsel now requests to withdraw because there is no viable 

basis for appeal.

II. Discussion2

Under Anders, if court-appointed appellate counsel “finds [an appeal] to be wholly 

frivolous, after a conscientious examination of” the case, he must “so advise the Court 

and request permission to withdraw.”3 When reviewing a request under Anders, this 

Court’s first inquiry is “whether counsel adequately fulfilled [the] requirements” of 

Anders.

4 Counsel’s request must be accompanied by “a brief referring to anything in the 

record that might arguably support the appeal.”5 Counsel’s brief is required “(1) to 

satisfy the court that counsel has thoroughly examined the record in search of appealable 

issues, and (2) to explain why the issues are frivolous.”6 An appeal is frivolous if “the 

appeal lacks any basis in law or fact.”7 

Here, we believe that counsel fulfilled the requirements of Anders. Counsel 

submitted a brief that thoroughly reviews the record and identifies the potential issues 

given the current procedural posture. As Ramos’s counsel points out, when there has 

 

2 The District Court exercised jurisdiction over this matter pursuant to 18 U.S.C. § 3231. 

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

3

Id. at 744.

4 United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).

5 Anders, 386 U.S. at 744.

6 Youla, 241 F.3d at 300.

7 McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 438 n.10 (1988); accord Youla, 

241 F.3d at 301 (“An appeal on a matter of law is frivolous where ‘[none] of the legal 

points [are] arguable on their merits’” (citation omitted) (alterations in original)).
5

been an unconditional guilty plea, the primary issues that may be raised on appeal are (1) 

the jurisdiction of the district court, (2) the validity of the guilty plea, and (3) the legality 

of the sentence.

8

 Ramos’s counsel discusses each of these issues in the Anders brief and 

describes why none supplies a plausible basis for appeal. 

After reviewing counsel’s brief, the Court asks “whether an independent review of 

the record presents any non-frivolous issues.”9“Where the Anders brief initially appears 

adequate on its face,” as counsel’s brief here does, and where there is no pro se brief, as 

there is not here, we primarily focus on the portions of the record identified by the Anders

brief.10 If our inquiry shows that the identified issues are frivolous, the Court must “grant 

trial counsel’s Anders motion, and dispose of the appeal without appointing new 

counsel.”11 We have independently reviewed the record, focusing on the issues raised by 

counsel’s Anders brief, and come to the following conclusions.

First, the District Court had jurisdiction over this matter pursuant to 18 U.S.C. § 

3231, which provides jurisdiction over violations of federal law, here illegal re-entry into 

the United States by a previously deported alien in violation of 8 U.S.C. § 1326. 

Second, there are no facts suggesting that Ramos’s guilty plea was involuntary or 

otherwise invalid. The District Court fully informed Ramos of the rights he was waiving, 

the maximum penalties he faced, and the existence and significance of the United States 

Sentencing Guidelines. Ramos indicated that he understood these points and pleaded 

 

8 See United States v. Semulka, 431 F. App’x 138, 141 (3d Cir. 2011) (citing United 

States v. Broce, 488 U.S. 563 (1989)).

9 Youla, 241 F.3d at 300. 

10 Id. at 301.

11 3d Cir. L.A.R. 109.2(a).
6

guilty. No facts suggest any involuntariness or any other basis for invalidity. Thus, the 

plea was valid.12

Third, the sentence was procedurally and substantively reasonable. Procedurally, 

the District Court correctly calculated the Sentencing Guidelines range, and “the record 

as a whole reflects rational and meaningful consideration of the factors enumerated in

18 U.S.C. § 3553(a).”13 Substantively, the sentence was near the bottom of the 

Sentencing Guidelines range, and we can find no basis for saying that “no reasonable 

sentencing court would have imposed the same sentence on that particular defendant for 

the reasons the district court provided.”14 Ramos requested a downward departure based 

on an overstatement of criminal history, specifically arguing he had not committed the 

assault for which he was convicted. However, the District Court heard Ramos’s evidence 

and argument, and thereafter credited the police affidavit describing the assault. We 

afford considerable deference to the District Court’s credibility determination,15 so we 

cannot see any viable basis for an appeal relating to this point. Ramos also requested a 

downward variance because he felt that he should have qualified for the Government’s 

fast track program, but the District Court, exercising its discretion, declined to grant that 

 

12 See United States v. Stewart, 977 F.2d 81, 84 (3d Cir. 1992) (“A transcript showing full 

compliance with the customary inquiries and admonitions furnishes strong, although not 

necessarily conclusive, evidence that the accused entered his plea without coercion and 

with an appreciation of its consequences.”).

13 United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc).

14 United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).

15 United States v. Kole, 164 F.3d 164, 177 (3d Cir. 1998) (“Credibility determinations 

are the unique province of a fact finder, be it a jury, or a judge sitting without a jury. 

Where the record supports a credibility determination, it is not for an appellate court to 

set it aside.” (citing Hoots v. Pennsylvania, 703 F.2d 722, 725 (3d Cir. 1983)).
7

variance. The District Court’s exercise of discretion is also entitled to substantial 

deference,16 so we cannot identify a plausible basis for appeal here either.

III. Conclusion

For the foregoing reasons, we will grant counsel’s request to withdraw and affirm 

the District Court’s judgment.

 

16 Gall v. United States, 552 U.S. 38, 59 (2007) (holding that appeals courts review 

sentences, including the decision to grant or deny a variance, for abuse of discretion 

because “it is not for the Court of Appeals to decide de novo whether the justification for 

a variance is sufficient or the sentence reasonable”).