2004 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_2004/500NOT PRECED ENTIAL UNITED S TATES COUR T OF APPEAL S FOR THE THIRD CIRCUIT

No. 03-4427

UNITED STATES OF AMERICA

v. JUAN RAF

AEL JIMENEZ, a/k/a RAFFI Juan Jimenez,

Appellant Appeal from the United States Dist rict Court for the District of New Jersey D.C. Crim

inal Act ion No. 03-cr-00159 Distri ct Judge: Honorable Dennis M. Cava naugh Submitted Under Third Circuit LAR 34.1(a)

June 29, 2004

Before: AM BRO, BE CKER an d GREE NBERG , Circuit Judges

(Opinion fil ed July

14, 2004)

OPINI ON2

AMBRO , Circuit

Judge Juan Jiminez pled g uilty to conspiracy to distribute and possess with th e intent to distribute more than 100 grams of heroin in v iolation of

21 U.S.C . § 841(a) a nd (b). Though Jiminez timely

appealed his conviction and sentence, his appell ate counsel has filed an Anders brief stating th at no non frivolou s issues exist for ap peal and moved to withdraw a s Jim

inez’scounsel. After reviewing the record in this ca se, we di smis s the appeal and grant coun sel’s motion. Factual and Procedural History In 1999 , Jimenez was conv icted in the Mid dle District of F lorida of co nspiracy to import, attempt to import, con spiracy to possess, and po ssession with in tent to distribu te MDMA (ecstasy ). He was sentenced to twelve m onths imprisonment and two y ears supervised re lease. In Aug ust 2000 , after serving his sentence, Jimenez w as deported to the Dominican Republic. In January 2002, he illegally

reentered the United State s without rep orting to th e United States P robation O ffice. On July 1, 2002, Jim

enez wasarres ted in Newa rk, New Je

rsey when he sold 500 gramsof heroin to a

n undercover

Drug Enforcem

ent Agency

(“DEA”) a

gent for $35,000. On March 5, 2003 , pursuant to a cooperating plea agreem ent with the United StatesAttorney ’s Office , he pled gui lty to conspir

acy to distr ibute and pos sess with intent to distribute more t

han 100 grams of heroin. On May 20, 2003, jurisdiction over Jime nez’s s upervise d relea se was t ransfer red from the Middle

Distri ct of Flori da to the3

District of New Jersey . Jimenez ple d guilty to thre e violations of his prior supervised release. On October 9, 2003, the District Court for the District of New Jerse y se ntenced Jimenez for all

offenses. Granting the Government’s m otion for downward departure based on his substantial assi stance to law enforcem ent, the District

Court sentenced Jime nez to 40 m

onths im prisonm ent for the

New Jers ey

drug conspir

acy convicti on and 12 months impris onment for violati on of supervis ed rele ase, bot h sentenc es to run consecutively. Jimenez appeal ed his sentence pro se , and counsel was appointed to re present him. On November 24, 2003, counsel filed a motion to withdraw from that repres entati on, a mot

ion we denie d. He has now fi led an Anders brief as serting that the appeal raises no nonfriv olous issues an d seeks again to withdraw as c ounsel. Discussion Third Circuit Local Appellate Rule 109.2(a) provides that “[w]here, upon review of the dist

rict c ourt rec ord, tri al counsel is per suaded tha t the appe al pres ents no is sue of even arguable merit , trial counsel m ay fil e a motion to withdraw and supporting brief pursuant t

o Anders v. Ca lifornia , [386 U.S. 738 (1967) ].” In reviewing an Anders motion, we must con sider both “(1 ) whether co unsel adequ ately fulfilled [Rule 109.2(a)’s] requirements; and ( 2) whether an indepen dent review o f the record presents any nonfrivolous issues.” United Sta tes v. Youla , 241 F.3 d 296, 2 99 (3d C ir. 2001).4

Thus we inquir

e first whether c ounsel sa

tisfie d his dutie s under Rule 109.2(a) by thoroughly

examining the re cord in se arch of appe alable issuesand explaining why any potential issues are frivolous. Id . at 300. While he “need not raise and reject every possible claim,” he must con scientiously examine the record

. Id . Counsel’s brief, which refers several times to his “rev iew of the re cord in this matter,” fu lfills the first pro ng. To be sure, mere recitatio n by counsel that he h as reviewed th e record is inad equate. See, e.g. , id . at 299 (“ Present

ing what am

ounts to a no- merit lett

er devoid of a

naly sis will not suffice”); see also United States v. Marvin , 211 F.3d 778, 780 (3d Ci r. 2000) (quot

ation omitted) (“[T]h e brief at a minimum must assure us that [ counsel] h as made a sufficien tly thorough eval

uation of the

record t o conclude t

hat no furthe

r discus sion of other

areasof the cas e is nec essar

y. ”). But c ounsel al so recites the releva nt factsand providesshort but accurate explan ations for th e inadequa cy of Jimenez’s claims. The record in th is case so clear ly demonst ratesthe propri ety

of sentenc ing that c ounsel’sbrevity is justi fied. As an initial ma

tter, Jim enez waived his appellate ri ghts. Appellate waivers “a re generally permissible

if entered into knowingly and voluntarily .” United States v. Khattak , 273 F.3d 557, 558 (3d Cir. 2001). There is no indication that Jim enez’s waiver was not knowing and volun tary . At the plea colloquy , the District Court questi oned Jime nez at l ength rega

rding his fa

mili arity with and under standing of t he plea a greem ent that Jimenez

signed. Tha

t agreement c ontains a

secti on entitl ed “Wai ver of Appeal and Post-Sentencing Rights,” which incorporates Schedule A. Schedule A, in turn, provides5

in relevant par t:

Juan Rafael Jimenez kn ows that he h as, a nd voluntari ly waives, the right to file any

appeal, any

collat eral a ttack, or any

other writ or motion after sentencing, including but not limited to an appeal under 18 U.S.C. § 3742 or a

motion unde

r 28 U.S.C. § 2 255, which challenges the sent

encing cour

t’s det ermination or imposit

ion of the offense level, if

the total off ense level determined by the court is equal to or les s than twe

nty -seven. The sentence imposed by the District

Court was w ell within the g uidelines con templated in the plea agre eme nt. In fac t, based on the Government’s recom mendation for downward departure, Jimenez w as assigned a total o ffense lev el of 19. Even wer e we to set aside the appellate waiv er, Jimenez would be unable to identify a non-fr ivolous issu e for app eal. His pro se notice of ap peal presents thr ee basic claim s. Firs t, he as sertsthat he wa s denied effective assis tance of c ounsel. Se cond, he claim s that t

he Governm

ent im permi ssibly

used against him

an admi ssion made in the course of hi s coopera

tion. Thir

d, he sugges ts that

his sent ence cons titute s cruel

and unusual p unishment. The first and third arguments warrant little discussion. We do not consider ineffective assistance of co unsel claims on direct re view. United Stat es v. Thor nton , 327 F.3d 268, 271–72 (3d Cir . 2003). And five ye ars im prisonm ent—not to m

ention a significantly

reduced sentence based on the Government’s m otion for downward departure— manifestly does not violate th e Eighth A mendment. Jimenez abando ns these arguments in his response to counsel’s Anders brief.6

Instead, he f ocuses on h is second claim. In his req uest for relief , he asks us to “eliminate the re- entry

charge” based on purpor ted ass urancesby t

he Governm

ent that he would not be charged with illegal reentry. Ultimately, this argument too is un availing. Jime nez was s entence d for violat ing his supe

rvised r eleas e by “re-enter[ing] t

he United States w ithout the ex press permission of the Attorney General.” In addition to forty m onths imprisonment on the heroin charges , the District Court se ntenced Jimenez to a conse cutive pr

ison ter m of twelve monthsbased on thr ee viola tions of the

conditions of supervised release im

posed after his Florida narcoticsconviction: commit ting a federal crime, illegal reentry, and failure to rep ort to the U.S . Probation Office after returning to the Unite d States . He rec eived twelve mont hs for the fi

rst viol ation and e

ight mont hs for the others, with all three to run c oncurren tly. Jime nez contends that t

he eight- month se

ntence for

illega l reent ry in violat ion of the condit

ions of his s upervise d relea se contr avened hisplea agr

eement with the Government. This a

rgument fails for many reasons . There i s no evidenc e that t he Government promi sed Jim enez he woul d not be char ged with illegal r

eentry . On the contrary , Jimenez’ s current counsel, who also served as t rial counsel, ass erts that Jim enez “received every benefit th at was owed to him by the Government.” In any event, Jime nez was not

charged with the subs tantive offense of illegal r

eentry under 8 U.S.C. § 1326

. Moreover, th e Governmen t cannot be said to have based its supervised relea se7

charges on information p rovided b y Jimenez during the cou rse of his coo peration with law enforcement. As counsel aptl y explains, “Appellant’s violation of supervised [release] in th e Middle District o f Florida w as apparent an d substantiated by the facts long before Appellant entered into a cooperating plea agreem ent with the United States Attorney ’s Office

merely by t he fact t hat he wasback in the

United Sta

tes, ha d not notified Probation in the Middle District of Florida and . . . was involved in a new narcotics conspiracy

in the District of New Jerse y.”In other words, that Jimenez had violate d the ter

ms of his supervis ed rele ase wasevident fr om his s ubsequent a

rrest , in the United States, o n drug ch arges. Finally, Jimenez suggests that in o rder to be sen tenced for illegal reentry he “must be charged, tried, and found guilty or ple ad guilty t o this violation.” But he did in fact plead guilty

to all three violati ons of his supervised release. Because we conclude that the appeal iswholly frivolous, we affirm Jimenez’s convi cti on and s ente

nce. In add

iti on, we grant couns el’ s mo tion t

o with draw.