2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-15-2002

USA v. Sanchez-Reyna

Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2190

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Recommended Citation

"USA v. Sanchez-Reyna" (2002). 2002 Decisions. Paper 394.

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 NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 01-2190 

 

 UNITED STATES OF AMERICA 

 v. 

 LUCIANO ABRAHAM SANCHEZ-REYNA, 

 Appellant 

 

 On Appeal from the United States District Court 

 for the District of New Jersey 

 D.C. Crim. No. 00-00723-1 

 Honorable Alfred J. Lechner, Jr., District Judge 

 

 

 Submitted under Third Circuit LAR 34.1(a) 

 July 12, 2002 

 BEFORE: SCIRICA and GREENBERG, Circuit Judges, 

 and FULLAM, District Judge* 

 (Filed: July 12, 2002) 

 

 

*Honorable John P. Fullam, Senior Judge of the United States District Court for the 

Eastern District of Pennsylvania, sitting by designation. 

 

 OPINION OF THE COURT 

 

GREENBERG, Circuit Judge. 

 Appellant Luciano Abraham Sanchez-Reyna, while represented by a retained 

attorney, Daniel L. Weiss, pleaded guilty to an information charging him with unlawful 

reentry into the United States in violation of 8 U.S.C. 1326(a) and (b)(2) after being 

deported following his conviction for an aggravated felony. The district court calculated 

his total offense level at 21 which, with his criminal history category of III, yielded a 

sentencing range of 46 to 57 months. The district court, finding that there was no reason 

to depart from the sentencing guidelines range, sentenced him to a term of 54 months to 

be followed by a three-year term of supervised release. The court did not impose a fine. 

 Sanchez-Reyna filed a timely appeal to this court and moved for the 

appointment of an attorney under the Criminal Justice Act. We initially appointed Weiss 

to represent him on this appeal but subsequently granted his application to withdraw and 
appointed Steven A. Feldman in his place. Feldman thereafter filed a motion to 

withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), together with 

a comprehensive and thoughtful brief making a thorough analysis of all possible issues 

on this appeal and concluding that, if raised, they would be frivolous. Accordingly, he 

has requested that we relieve him as counsel and dismiss the appeal. The government 

concurs. 

 We independently have reviewed this matter and agree with the parties’ analysis 

that there are no non-frivolous issues that could be advanced on the appeal. The possible 

issue that comes closest to being substantial is attributable to the sentencing disparity 

between the sentences imposed upon a plea of guilty for illegal reentry in the Southern 

District of California and the rest of the country by reason of approximately one-half of 

the prosecutions being brought nationally for illegal reentry in that district. See United 

States v. Bonnet-Grullon, 53 F. Supp. 2d 430, 432 (S.D.N.Y. 1999) , aff’d, 212 F.3d 692 

(2d Cir. 2000). To dispose of this inordinate volume of cases, the United States Attorney 

in the Southern District of California usually permits the defendant to plead guilty to 

simple illegal reentry under 8 U.S.C. 1325(a), pursuant to a fast track program, and 

thus be eligible for a lower guidelines sentence than that imposed for identical conduct in 

cases prosecuted under section 1326(a). In light of this practice, Sanchez-Reyna’s brief 

contends that while the court here imposed a 54-month sentence, if he had "committed 

the same offense in San Diego, he would have received 24 month[s] under the ’fasttrack’ program." Br. of Appellant at 13. The brief recites that "it is unfair for a 

defendant’s sentence to turn on whether he illegally re-entered the United States in New 

Jersey or California." Id. Thus, the brief argues that he should be entitled to relief by 

reason of this disparity. 

 Nevertheless, the brief acknowledges that the case law establishes that such 

relief is not available. See United States v. Banuelos-Rodriguez, 215 F.3d 969 (9th Cir. 

2000) (en banc); United States v. Bonnet-Grullon, 212 F.3d 692 (2d Cir. 2000). While it 

would be possible for courts in districts other than the Southern District of California to 

depart downwards from the sentencing ranges in section 1326(a) and (b)(2) convictions 

so that the ranges would be consistent with those in section 1325(a) convictions, the 

above courts of appeals cases demonstrate there is no legal basis for such a departure. 

Moreover, Sanchez-Reyna’s attorney did not ask for a departure on the basis of this 

disparity, and, thus, the absence of a departure could be challenged on this appeal only 

on a plain error basis. See United States v. Vazquez, 271 F.3d 93, 99-100 (3d Cir. 2001) 

(en banc), cert. denied, 70 U.S.L.W. (U.S. June 28, 2002). But clearly the district court 

did not commit error at all, much less plain error, in not departing from the guideline 

range. Thus, the disparity issue, though not unappealing, is simply not meritorious. 

 Sanchez-Reyna’s brief also points out that there appears to be no basis to argue 

that his district court attorney was ineffective. We agree with this position, at least 

insofar as we can review the attorney’s performance from the record before us. In any 

event, as the brief further points out, an appellant ordinarily cannot raise an argument on 

direct appeal that his district court attorney was ineffective. See United States v. Sandini, 

888 F.2d 300, 311-12 (3d Cir. 1989). 

 For the foregoing reasons, we will grant Feldman’s motion to withdraw and will 

dismiss this appeal. 

 

TO THE CLERK: 

 Please file the foregoing not precedential opinion. 

 /s/ Morton I. Greenberg 

 Circuit Judge 

DATED