2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-10-2012

USA v. Eridio Polanco

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2174

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2012

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 2012 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. Eridio Polanco" (2012). 2012 Decisions. Paper 1020.

http://digitalcommons.law.villanova.edu/thirdcircuit_2012/1020
*The Honorable C. Darnell Jones, District Court Judge for the U.S. District Court for the 

 Eastern District of Pennsylvania, sitting by designation.

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

NOT PRECEDENTIAL

_____________

No. 11-2174

_____________

UNITED STATES OF AMERICA

v.

ERIDIO POLANCO,

 Appellant

Appeal from the United States District Court

for the District of New Jersey

(No.: 2-11-cr-00034-001)

District Judge: Hon. Faith S. Hochberg

Submitted Pursuant to Third Circuit LAR 34.1(a)

Thursday, April 12, 2012

Before: McKEE, Chief Judge, HARDIMAN, Circuit Judge, and *JONES, District Judge

(Opinion Filed: May 10, 2012)

OPINION

McKEE, Chief Judge.

Eridio Polanco pled guilty to one count of distribution and possession with intent 

to distribute 100 grams or more of heroin. Polanco’s counsel has since filed a motion to 

withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967) and has 

represented that there are no non-frivolous grounds for appeal. Polanco has filed a pro se
2

brief in response. For the reasons that follow, we will grant counsel’s motion to 

withdraw and affirm the judgment and sentence of the district court. 

Because we write primarily for the parties who are familiar with this case we need 

not set forth the facts or procedural history except to the extent that they clarify our brief 

discussion. 

When counsel files an Anders brief and moves to withdraw, we must determine 

“(1) whether counsel adequately fulfilled [Third Circuit Local Appellate Rule 109.2(a)’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). Counsel 

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.” Id. In 

conducting an independent review of the record, “we confine our scrutiny to those 

portions of the record identified by an adequate Anders brief” and “those issues raised in 

Appellant’s pro se brief [if any is filed].” Id. at 301. After reviewing counsel’s Anders

brief, we are convinced that counsel has satisfied Rule 109.2(a)’s requirements by 

identifying all appealable issues and explaining why those issues are frivolous. 

In his pro se brief, Polanco alleges that he pled guilty with the expectation that he 

would receive a sentence in the range of 46 to 57 months of imprisonment and that he 

would be eligible for a safety valve reduction. The record belies Polanco’s allegations. 

In his application for permission to enter a plea of guilty, Polanco confirmed that he 

understood that he was facing a mandatory minimum of five years’ imprisonment, and 
3

the plea agreement clearly states that his eligibility for a safety valve reduction under 

U.S.S.G. § 5C1.2(a)(1) had not yet been determined at the time the agreement was 

entered into. Moreover, the district court reviewed the plea agreement and ascertained 

that Polanco understood its terms during the plea colloquy. 

Polanco also contends that his counsel was ineffective for failing to explain the 

consequences of the plea agreement to him. “Claims of ineffective assistance of counsel 

generally are not entertained on direct appeal.” United States v. Haywood, 155 F.3d 674, 

678 (3d Cir. 1998). We see nothing that would compel us to make an exception to that 

rule here. Moreover, our review of the record reveals that there is no basis for an 

ineffectiveness claim. Thus, we conclude that the issues raised by Polanco are frivolous 

and that there are no other non-frivolous issues. 

For the reasons stated above, we will grant counsel’s motion to withdraw and 

affirm the district court’s sentence.