2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-8-2003

USA v. Diehl

Precedential or Non-Precedential: Non-Precedential

Docket 02-2570

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

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 2003 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. Diehl" (2003). 2003 Decisions. Paper 564.

http://digitalcommons.law.villanova.edu/thirdcircuit_2003/564
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEAL

FOR THE THIRD CIRCUIT

 

No. 02-2570

 

UNITED STATES OF AMERICA

v.

RINALDO DIEHL, a/k/a Gabe

Rinaldo Diehl,

Appellant

 

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Criminal No. 01-cr-00373-11)

District Judge: Hon. Jerome B. Simandle

 

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 1, 2003

BEFORE: McKEE, SMITH and COWEN, Circuit Judges

(Filed: May 8, 2003)

 

OPINION

 

COWEN, Circuit Judge.

Appellant Rinaldo Diehl and eleven co-defendants were charged in a one-count

indictment with conspiracy to possess and distribute a controlled substance in violation of
 

1

 U.S.S.G. 4A1.3 states in relevant part that: 

If reliable information indicates that the criminal history category significantly

overrepresents the seriousness of the defendant’s past criminal conduct or the

likelihood that the defendant will commit other crimes, the court may consider

imposing a sentence departing from the otherwise applicable guideline range.

2

21 U.S.C. § 846. On October 26, 2001, Diehl pled guilty to possessing more than five

grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Diehl’s

violation carried a possible term of imprisonment between 188 and 235 months under the

relevant provisions of the United States Sentencing Guidelines. Prior to sentencing,

Diehl moved for a downward departure pursuant to U.S.S.G. § 4A1.3, arguing that his

criminal history significantly overrepresents the seriousness of his conduct.1 The District

Court declined to exercise its discretion to depart from the guidelines, and on May 29,

2002, Diehl was sentenced to a prison term of 188 months. The District Court further

sentenced Diehl to a five-year period of supervised release to commence after his term of

imprisonment. This timely appeal followed. The District Court had jurisdiction under 18

U.S.C. § 3231, and we exercise jurisdiction under 28 U.S.C. § 1291.

Diehl’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967) stating that no non-frivolous issues exist for appeal. The United States agrees with

this representation. In Anders, the Supreme Court established that where a conscientious

examination of the record convinces counsel representing an indigent criminal defendant

that no meritorious issues exist for appeal, counsel may seek to withdraw from further
 

2

 Rule 109.2(a) of the Third Circuit states: 

Where, upon review of the district court record, trial counsel is persuaded that the

appeal presents no issue of even arguable merit, trial counsel may file a motion to

withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.

Ct. 1396, 18 L. Ed. 2d 493 (1967) which shall be served upon the appellant and the

United States. The United States shall file a brief in response. Appellant may also

file a brief in response pro se. After all the briefs have been filed, the clerk will refer

the case to a merits panel. If the panel agrees that the appeal is without merit, it will

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

counsel. If the panel finds arguable merit to the appeal, it will discharge counsel,

appoint substitute counsel, restore the case to the calendar, and order supplemental

briefing. 

 

3

 Diehl was provided the opportunity to file a pro se brief with this Court, but has

declined. Anders, 386 U.S. at 744; L. App. R. 109.2(a). Diehl instead contacted his

counsel and asked this Court to review the District Court’s denial of his sentencing

motion, and whether the government was required to provide notice of the prior

convictions relied upon for enhancement. 

3

representation. Id. at 744; United States v. Youla, 241 F.3d 296, 299 (3d Cir. 2001).2

Our evaluation of an Anders brief considers whether counsel has adequately fulfilled the

requirements of L. App. R. 109.2(a), and whether our independent review of the record

reveals any non-frivolous issues. Youla, 241 F.3d at 300; United States v. Marvin, 211

F.3d 778, 780-81 (3d Cir. 2000). A satisfactory Anders brief requires evidence that

counsel has throughly and conscientiously examined the record for appealable issues, and

an explanation of why the issues presented are frivolous. Youla, 241 F.3d at 300;

Marvin, 211 F.3d at 780. It is not necessary for counsel to “raise and reject every

possible claim,” but the brief must demonstrate a conscientious review of the case. 

Youla, 241 F.3d at 300. 

After considering the submission of Diehl’s counsel,3 and following our own
4

independent review of the present record, we agree that there are no non-frivolous issues

for appeal. We note that the District Court engaged in a thorough colloquy with Diehl

prior to accepting his plea as required by Federal Rule of Criminal Procedure 11. None

of Diehl’s pre-trial motions concerned jurisdictional matters, and hence his right to appeal

these rulings was waived by his plea agreement. United States v. Panarella, 277 F.3d

678, 689 (3d Cir. 2002); United States v. Bentz, 21 F.3d 37, 38 (3d Cir. 1994). In

addition, as the District Court acknowledged its discretion to depart from the Guidelines,

but nonetheless determined that departure was not warranted, we lack jurisdiction to

consider an appeal of Diehl’s sentencing motion. United States v. Marin-Castaneda, 134

F.3d 551, 554 (3d Cir. 1998). Finally, the United States was not required to inform Diehl

in writing of the prior convictions it intended to rely upon in seeking career offender

enhancement under U.S.S.G. § 4B1.1, because the government did not seek a sentence

beyond the maximum provided by the statute. United States v. Day, 969 F.2d 39, 48 (3d

Cir. 1992).

For the foregoing reasons, we find that the issues raised in this appeal lack legal

merit, and find no other non-frivolous issues for review. L. App. R. 109.2(b). 

Accordingly, we will grant counsel’s motion to withdraw and affirm the judgment of the

District Court entered on May 31, 2002.
 

TO THE CLERK:

Please file the foregoing opinion.

 /s/ Robert E. Cowen 

United States Circuit Judge