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. e du/thir dc ir c uit_2002/80NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________

No. 00-5234

____________

UNITED STATES OF AMERICA

v.

DANIEL SOTO

BOLIVER HICIANO, AKA DANIEL SOTO, Appellant

____________ Appeal from the United States District Co urt for the District of New Jersey (D.C. Criminal No: 98-cr-00471) District Judge: The Honorable Nicholas H. Po litan

_____________

Submitted Under Third Circuit LAR 34.1(a ) June 21, 2001

Before: ROTH, AMBRO, and FUENTES, Circuit J udges

(Filed January 31, 2002 )

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MEMORANDUM OPINION

____________ AMBRO, Circuit Judge

In this appeal, Daniel Soto, pro se, asks that we vacate his conviction for conspiracy to commit money laundering under 18 U.S. C.  1956(h) and possession of false identification documents under 18 U.S.C.  1028 (a)(3), or, in the alternative, to remand his case for resentencing. Soto's counsel f iled a brief pursuant to Anders v. California, 386 U.S. 738 (1967), advising us that h e had completed a conscientious review of the record and concluded that there were no non-frivolous issues on appeal. Soto was notified that counsel had filed an Anders brief and was given an opportunity to present for review any arguments that he chose to m ake on his own. In all, Soto offersfive arguments to support his appeal (three of whic h are not covered by

his counsel): first, the District Court erred when it used the amount of money involved in Soto's crime as a sentencing factor without proving the amount beyond a reasonable doubt; second, the indictment, and by logical sequence the guilty plea , is invalid because it failed to set forth all the elements of the crimes charged; third, the guilty plea is invalid because the District Court failed to follow Rule 11(c)(1) of the Federal Rules of Criminal Procedure when it did not inform Soto of the elements of the crimes t o which he was pleading guilty; fourth, the District Court erred when it did not grant Soto a downward departure in sentencing based on his pre-trial conditions; and lastly, the sentence should be vacated because of ineffective assistance of counsel. After conductin g the necessary full examination and review of the proceedings below and of Soto's pro s e arguments, we too find the his arguments without merit, and in affirming judgment of the District Court we grant the trial counsel's motion to withdraw. I. The United States Customs Service ("Customs") and the Internal Revenue Service ("IRS") began investigating Daniel Soto (a/k/a Boli var Hiciano) and his wife, Jasa Soto, in May of 1996 for suspected money laundering. The Sotos owned and operated in Atlantic City their own company, Santo Domingo Trav el, which the Government believed was being used for a money laundering oper ation. As part of the investigation, undercover agent s gave the Sotos approximately $277,451 to launder to accounts in the Dominican Re public. At times the agents portrayed the currency transferred to the Sotos as proceeds from illegal drug sales. From September 27, 1996 until June 19, 1998, Daniel Soto executed over 28 illegal currency transactions as part of the Government's undercover operation. Besides

money laundering, the Sotos also sold false identificatio n documents to the undercover agents as a requirement for continued money laundering. Cust oms' agents purchased approximately 16 sets of false identification docum ents. On July 14, 1998, the Government filed a forty -count indictment against Soto, which charged him, inter alia, with money launderin g in violation of 18 U.S.C.  1956(h)and illegal possession of identification documents in violation of 18

U.S.C.  1028(a)(3), respectively. On December 20, 1999, Soto pled guil ty to Counts One and Forty of the indictment. The District Court conducted a sentenc ing hearing on March 28, 2000. Soto was sentenced to 48 months imprisonment for Count O ne and 36 months for Count Forty, with the sentences to run concurrently. He filed a pro se Notice of Appeal on April 3, 2000. As noted, his attorney has motioned to withd raw as counsel because there are no non-frivolous issues for appeal.

II. When counsel wishes to withdraw from represent ation on appeal, he must do so pursuant to the guidelines established by the Supre me Court in Anders. Those guidelines require a withdrawing attorney to submit to this Co urt "a brief referring to anything in the record that might arguably support the appeal." Id . at 744. "Such 'conscientious examination' is grounded in the Constitutional requ irement of substantial equality and fair process, which the Court notes 'can only be at tained in behalf of his client, as opposed to that of amicus curiae.'" United States v . Youla, 241 F.3d 296, 299 (3d Cir. 2001) (quoting Anders, 386 U.S. at 744). We are guided in these matters by Local Appell ate Rule 109.2(a), which is explained in Youla. "The court's inquiry when couns el submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled t he rule's requirements; and (2) whether an independent review of the record presents any no nfrivolous issues." Id. at 300; accord United States v. Marvin, 211 F.3d 778, 779 (3d Cir. 2001). If counsel fulfilled the Anders inquiry and we find that there is arguable merit to the appeal, we will grant counsel's motion to withdraw, appoint new counsel, and reques t supplemental briefing. See Local Appellate Rule 109.2(a). If we find that the appea l is without merit, we will dispose of the appeal without appointing new counsel. See id. In this case, we conclude that Soto's counsel has adequately met the requirements in Ande rs and we grant his motion to withdraw. We also find that the appeal is without merit and we affirm the judgment of the District Court. A. Adequacy of Anders BriefWhen preparing an Anders brief, counsel must ( 1) "satisfy the court

that counsel has thoroughly examined the record in search of app ealable issues," and (2) "explain why the issues are frivolous." Youla 241 F.3d at 300. The brief need not rehash every possible claim but must meet the standard of "consc ientious examination" laid out in Anders. Id. The Anders brief presented here contains an ad equate examination of the possible issues for appeal. The main argument discussed by counsel is that the District Court could have granted the motion to depart downward ba sed on Soto's pre-trial conditions, the possibility of deportation, and family circumst ances. Counsel presents a significant amount of case law in support of his contention tha t the District Court would have to consider these factors in deciding to grant the mot ion to depart downward. Furthermore, counsel also discusses the adequacy of the plea agr eement under Rule 11 of the Federal Rules of Criminal Procedure, and explains how the r ecord shows that Soto understood his plea agreement and that any argument challenging hi s guilty pleas would be frivolous. Although counsel has not covered every issue for ap peal conceived by Soto, he has referred to the issues arguably supportable on appe al. Therefore, we conclude that the Anders brief is adequate. B. Arguable Merits to the Appeal Although we generally rely on the Anders brief to identify the issues raised for appeal, we may look at the pro se brief as well. S ee Youla, 241 F.3d at 301. That pro se brief contains five arguments, three of which, as n oted, are not covered by counsel. After reviewing the arguments in Soto's brief and those r aised by the Anders brief, we conclude that they lack merit. The first issue that is discussed in the Ander s brief, and Point IV of Soto's pro se brief, is that the District Court should have grant ed his motion for a downward departure based on his pre-trial conditions, possibility of d eportation, and family circumstances. However, we reject this argument because Soto inten tionally withdrew the motion for a downward departure. Although counsel argues that h e re-requested such a motion, we find nothing in the record to support this assertio n. Instead it appears that, after Sotowithdrew his motion, counsel merely advocated to th e District Court that

it sentence Soto at the bottom of the Sentencing Guidelines. This ha rdly argues that we should overturn Soto's sentence and remand for a downward departure

. The second issue discussed in the Anders brief , and Point III of Soto's pro se brief, is that his conviction is in violation of Rule 11(c )(1) of the Federal Rules of Criminal Procedure because the District Court did not specif ically advise him of the elements of the crimes to which he was pleading guilty. Where a defendant fails to call alleged errors in a plea colloquy to the District Court's attentio n, we review only for plain error. United States v. Olano, 507 U.S. 725, 733 (1993). A plain error analysis requires that "[t]here must be an error that is plain and that affect[s] s ubstantial rights. Moreover, . . . the decision to correct the forfeited error [is] within the sound discretion of the court of appeals, and the court should not exercise that dis cretion unless the error seriously affect[s] the fairness, integrity or public reputat ion of judicial proceedings." Id. at 732 (citations and quotations omitted). Here we find no error in the District Court's plea colloquy. Rule 11(c)(1) does not require that a defendant be notified of all the ele ments of the crimes to which he is pleading guilty. It only requires that the distric t court ensures that the defendant knows "the nature of the charge to which the plea is offe red." Fed. R. Crim. P. 11. During the plea colloquy the sentencing judge walked through a detailed questioning process that described all the elements of the crimes to which S oto pled guilty. Soto unequivocally affirmed that he understood he was pleading guilty to Count One, charging him with conspiracy to commit money laundering, and Count Fo rty, charging him with possession with intent to use and transfer illegal Social Secu rity cards and birth certificates in violation of federal law. On a related issue, Soto argues in Point II of his pro se brief that the District Court should not have accepted his plea agreement because the indictment failed to allege all the elements of the crime for which the he was char ged. Although Soto never raised this argument before the District Court, "we will consid er it in light of our prior holding that adefendent may challenge an indictment for failure t o charge an offense for

the first time on appeal." United States v. Cefaratti, 221 F.3d 502, 507 (3d Cir. 2000). "However, when a challenge is urged for the first time on app eal we will construe the indictment liberally in favor of validity." Id. at 507. We re ad the indictments under Count One, dealing with conspiracy to commit money laundering, and Count Forty, dealing with false identification, as having all the sufficient elemen ts of the charged offenses. Both follow the provisions of the statute under which Soto is b eing charged to our satisfaction. We therefore find that there was no error in the indic tment. Soto argues in Point I of his pro se brief tha t his sentence is in violation of the recent Supreme Court ruling in Apprendi v. New Jers ey, 530 U.S. 466 (2000). We exercise plenary review of a defendant's challenge to his sentence under Apprendi. United States v. Williams, 235 F.3d 858, 861 (3d Ci r. 2001). Soto claims that because the District Court never proved beyond a reasonable dou bt the amount of money that was transferred, any enhancements received based on tha t amount, here two levels, would be a violation of Apprendi. Soto misinterprets, however , the Supreme Court's ruling. Apprendi only applies to cases where a defendant re ceives a sentence beyond the statutory maximum. Apprendi, 530 U.S. at 860. Sot o's sentence of 48 months for conspiracy to commit money laundering is far below the statutory maximum of 20 years and therefore this case does not fall into the doma in of Apprendi. Last, we refuse to review Soto's claim of inef fective assistance of counsel (Point V of his pro se brief) because we generally do not re view ineffective assistance claims on direct appeal and prefer that they be raised under a 28 U.S.C.  2255 motion. "There are two reasons for that position: (1) if the same lawy er represented the defendant both at trial and on appeal, it is unrealistic to expect a lawyer to argue on appeal that his own performance at trial was ineffective; and (2) resol ution of claims of ineffective assistance of trial counsel often requires consideration of ma tters that are outside the record on direct appeal and that should be considered by the distric t court in the first instance." United States v. DeRewal, 10 F.3d 100, 103 (3d Cir. 1993).In summary, we determine that the brief filed pursuant to Anders v.

California by Soto's counsel is adequate and the motion by counse l to withdraw is granted. We also determine, based on the Anders brief and the brief filed pro se by Soto, that his appeal is without merit, and thus his conviction and sentence are affirmed.TO THE CLERK:

Please file the foregoing Memorandum Opinion.

/s/Thomas L. Ambro

________________ ___________ Circuit Judge