2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-31-2002

USA v. Soto

Precedential or Non-Precedential:

Docket 0-5234

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Recommended Citation

"USA v. Soto" (2002). 2002 Decisions. Paper 80.

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 NOT PRECEDENTIAL 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 Court 

 for the District of New Jersey 

 (D.C. Criminal No: 98-cr-00471) 

 District Judge: The Honorable Nicholas H. Politan 

 _____________ 

 

 Submitted Under Third Circuit LAR 34.1(a) 

 June 21, 2001 

 

 Before: ROTH, AMBRO, and FUENTES, Circuit Judges 

 (Filed January 31, 2002 ) 

 ____________ 

 

 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 filed a brief pursuant 

to Anders v. 

California, 386 U.S. 738 (1967), advising us that he 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 make on his own. In 

all, Soto offers 
five arguments to support his appeal (three of which 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 to 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 conducting the necessary full 

examination and 

review of the proceedings below and of Soto's pro se 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 Bolivar 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 Travel, which the 

Government 

believed was being used for a money laundering operation. 

 As part of the investigation, undercover agents gave the Sotos 

approximately 

$277,451 to launder to accounts in the Dominican Republic. 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 identification documents to the 

undercover agents as 

a requirement for continued money laundering. Customs' agents purchased 

approximately 16 sets of false identification documents. 

 On July 14, 1998, the Government filed a forty-count indictment 

against Soto, 

which charged him, inter alia, with money laundering 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 guilty to Counts One and 

Forty of the 

indictment. The District Court conducted a sentencing hearing on March 

28, 2000. Soto 

was sentenced to 48 months imprisonment for Count One 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 withdraw as counsel because 

there are no 

non-frivolous issues for appeal. 

 II. 

 When counsel wishes to withdraw from representation on appeal, he 

must do so 

pursuant to the guidelines established by the Supreme Court in Anders. 

Those guidelines 

require a withdrawing attorney to submit to this Court "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 requirement of substantial 

equality and 

fair process, which the Court notes 'can only be attained 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 Appellate Rule 109.2(a), 

which is 

explained in Youla. "The court's inquiry when counsel submits an Anders 

brief is thus 

twofold: (1) whether counsel adequately fulfilled the rule's requirements; 

and (2) whether 

an independent review of the record presents any nonfrivolous 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 request supplemental 

briefing. See Local 

Appellate Rule 109.2(a). If we find that the appeal 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 Anders 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 Brief 
 When preparing an Anders brief, counsel must (1) "satisfy the court 

that counsel 

has thoroughly examined the record in search of appealable 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 "conscientious examination" 

laid out in 

Anders. Id. 

 The Anders brief presented here contains an adequate 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 based on Soto's pre-trial 

conditions, 

the possibility of deportation, and family circumstances. Counsel 

presents a significant 

amount of case law in support of his contention that the District Court 

would have to 

consider these factors in deciding to grant the motion to depart downward. 

Furthermore, 

counsel also discusses the adequacy of the plea agreement under Rule 11 of 

the Federal 

Rules of Criminal Procedure, and explains how the record shows that Soto 

understood his 

plea agreement and that any argument challenging his guilty pleas would be 

frivolous. 

Although counsel has not covered every issue for appeal conceived by Soto, 

he has 

referred to the issues arguably supportable on appeal. 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. See Youla, 241 F.3d at 

301. That pro se 

brief contains five arguments, three of which, as noted, are not covered 

by counsel. After 

reviewing the arguments in Soto's brief and those raised by the Anders 

brief, we conclude 

that they lack merit. 

 The first issue that is discussed in the Anders brief, and Point IV 

of Soto's pro se 

brief, is that the District Court should have granted his motion for a 

downward departure 

based on his pre-trial conditions, possibility of deportation, and family 

circumstances. 

However, we reject this argument because Soto intentionally withdrew the 

motion for a 

downward departure. Although counsel argues that he re-requested such a 

motion, we 

find nothing in the record to support this assertion. Instead it appears 

that, after Soto 
withdrew his motion, counsel merely advocated to the District Court that 

it sentence Soto 

at the bottom of the Sentencing Guidelines. This hardly 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 specifically 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 attention, 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] substantial 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 discretion unless the 

error seriously 

affect[s] the fairness, integrity or public reputation 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 elements of the crimes to 

which he is 

pleading guilty. It only requires that the district court ensures that 

the defendant knows 

"the nature of the charge to which the plea is offered." 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 Soto 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 Forty, charging him with 

possession 

with intent to use and transfer illegal Social Security 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 charged. Although Soto 

never raised this 

argument before the District Court, "we will consider it in light of our 

prior holding that a 
defendent may challenge an indictment for failure to 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 appeal we will construe 

the indictment 

liberally in favor of validity." Id. at 507. We read the indictments 

under Count One, 

dealing with conspiracy to commit money laundering, and Count Forty, 

dealing with false 

identification, as having all the sufficient elements of the charged 

offenses. Both follow 

the provisions of the statute under which Soto is being charged to our 

satisfaction. We 

therefore find that there was no error in the indictment. 

 Soto argues in Point I of his pro se brief that his sentence is in 

violation of the 

recent Supreme Court ruling in Apprendi v. New Jersey, 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 Cir. 2001). Soto claims 

that because the 

District Court never proved beyond a reasonable doubt the amount of money 

that was 

transferred, any enhancements received based on that 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 receives a sentence 

beyond the 

statutory maximum. Apprendi, 530 U.S. at 860. Soto'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 domain of Apprendi. 

 Last, we refuse to review Soto's claim of ineffective assistance of 

counsel (Point V 

of his pro se brief) because we generally do not review 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 lawyer 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) resolution of claims of 

ineffective assistance 

of trial counsel often requires consideration of matters that are outside 

the record on direct 

appeal and that should be considered by the district 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 counsel 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