2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-18-2011

USA v. Pierre Cidone

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1334

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Recommended Citation

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 10-1334

____________

UNITED STATES OF AMERICA

v.

PIERRE CIDONE,

a/k/a Pski

 PIERRE CIDONE,

 Appellant

____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3-06-cr-0061-001)

District Judge: Honorable A. Richard Caputo

____________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 28, 2011

Before: FISHER, VANASKIE and ROTH, Circuit Judges.

(Filed: November 18, 2011)

____________

OPINION OF THE COURT

____________

FISHER, Circuit Judge.
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Pierre Cidone (“Cidone”) appeals the District Court‟s judgment and sentence for 

the charge of possession with intent to distribute in excess of 50 grams of cocaine base, in 

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Pursuant to Anders v. California, 

386 U.S. 738 (1967), counsel for Cidone filed a brief explaining that there are no nonfrivolous issues for appeal. Cidone outlined the reasons for his appeal in a subsequently 

filed pro se brief. For the reasons discussed below, we will affirm the District Court‟s 

judgment and grant defense counsel‟s motion to withdraw.

I.

We write principally for the parties, who are familiar with the factual context and 

legal history of this case. Therefore, we will set forth only those facts necessary to our 

analysis.

On May 4, 2005, a confidential informant notified the Scranton Police that Cidone 

was traveling to New Jersey to purchase crack cocaine and then returning to Scranton, 

Pennsylvania. The informant described in detail the vehicle being used, the passengers in 

the vehicle, its destination, and the estimated time of arrival. When the vehicle arrived in 

Scranton, the police officers at the scene verified the informant‟s description. After the 

police approached the vehicle, they identified themselves and shined flashlights into the 

vehicle. The police observed Cidone making furtive movements in the rear passenger 

seat. The police then removed the occupants of the vehicle and observed in plain view, 

where Cidone had been sitting, a clear plastic bag that appeared to contain crack cocaine. 
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The officers then arrested Cidone and read him his Miranda rights. Cidone denied that 

he owned the drugs.

On February 14, 2006, a federal grand jury returned an indictment against Cidone,

charging him with conspiracy to distribute in excess of 50 grams of cocaine base, in 

violation of 21 U.S.C. § 846 (Count 1), possession with intent to distribute in excess of 

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

(Count 2), and possession of more than five grams of cocaine base, in violation of 21 

U.S.C. § 844 (Count 3). On January 23, 2008, after conducting a hearing, the District 

Court denied Cidone‟s motion to suppress the evidence. On June 4, 2008, Cidone pled 

guilty to possession with intent to distribute in excess of five grams of cocaine base

(Count 2). The plea agreement was later amended to remove the recommended sentence 

term. The District Court accepted Cidone‟s guilty plea after conducting a colloquy and 

finding that he knowingly and voluntarily pled guilty. Cidone subsequently filed a 

motion to withdraw his guilty plea, which was denied. The District Court sentenced 

Cidone to 120 months of imprisonment. Cidone filed a timely appeal.

II.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have 

appellate jurisdiction under 28 U.S.C. § 1291. Counsel may file a motion to withdraw 

representation under Anders if, after reviewing the district court‟s record, he or she is 

“persuaded that the appeal presents no issue of even arguable merit.” Third Circuit 
4

L.A.R. 109.2(a). We evaluate a counsel‟s Anders brief twofold: (1) whether counsel 

thoroughly examined the record in search of appealable issues and explained why the 

issues are frivolous; and (2) “whether an independent review of the record presents any 

non-frivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). If we 

determine that “the Anders brief initially appears adequate on its face,” the second step of 

our inquiry is “guided . . . by the Anders brief itself.” Id. at 301 (quotation marks and 

citation omitted). Because defense counsel‟s Anders brief appears to be thorough and 

adequate on its face here, we now examine the arguments presented in his Anders brief.

III.

A.

Defense counsel submits that there is no non-frivolous argument that the District 

Court lacked jurisdiction over the case. We conduct plenary review over whether the 

District Court properly exercised jurisdiction. Reich v. Local 30, 6 F.3d 978, 982 (3d Cir. 

1993).

“The district courts of the United States shall have original jurisdiction, exclusive 

of the courts of the States, of all offenses against the laws of the United States.” 18 

U.S.C. § 3231. Because Cidone‟s conviction and sentence were for an offense under 

federal law, there is no non-frivolous argument that the District Court lacked jurisdiction.

B.
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In his pro se brief, Cidone argues that “all Federal drug crimes are 

unconstitutional.” In his Anders brief, defense counsel submits that this argument is 

frivolous. “We apply a plenary standard of review . . . to questions regarding a statute‟s 

constitutionality.” United States v. Randolph, 364 F.3d 118, 121 (3d Cir. 2004) (citing 

United States v. Rodia, 194 F.3d 465, 469 (3d Cir. 1999)).

We have no difficulty holding that federal laws regulating food and drugs under 

Title 21 of the U.S. Code, including 21 U.S.C. § 841, under which Cidone was convicted, 

are constitutional. Under the Commerce Clause, Congress has the power to regulate the 

large interstate market for illegal drugs, just as it has the power to regulate food and drugs 

in general. U.S. Const. Art. I, § 8, cl. 3; see, e.g., Reina v. United States, 364 U.S. 507, 

511 (1960). Thus, we reject Cidone‟s argument and agree with defense counsel.

C.

Defense counsel next submits there is no non-frivolous argument that Cidone‟s 

guilty plea was invalid because the District Court conducted an inadequate colloquy 

under Federal Rule of Criminal Procedure 11(b)(1). Because Cidone failed to timely 

object, we review the alleged Rule 11 violation for plain error. United States v. Corso, 

549 F.3d 921, 927 (3d Cir. 2008) (citation omitted).

The District Court conducted a proper plea colloquy under Rule 11. During the 

plea hearing, Cidone was placed under oath and asked a series of questions pursuant to 

Rule 11 to ensure that he understood his rights and the consequences of pleading guilty. 
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The District Court verified that Cidone had signed the plea agreement, read and 

understood the provisions of the agreement, conferred with his attorney about the 

agreement, and was freely and voluntarily agreeing to plead guilty. Additionally, the 

District Court explained the maximum possible penalties, the mandatory minimum 

penalties, and how the advisory guidelines would be taken into consideration. The 

District Court‟s colloquy was thorough and proper, and thus, in accord with Rule 11.

D.

Defense counsel submits there is no arguably meritorious argument that the 

District Court erred in denying Cidone‟s motion to withdraw his guilty plea. We review 

the District Court‟s denial of a motion to withdraw a guilty plea for abuse of discretion. 

United States v. Brown, 250 F.3d 811, 815 (3d Cir. 2001).

After the court accepts a plea agreement, but before it imposes a sentence, the plea 

can only be withdrawn if (1) the court subsequently rejects the agreement under Rule 

11(c)(5), or (2) “the defendant can show a fair and just reason for requesting the 

withdrawal.” Fed. R. Crim. Pr. 11(d)(2). Cidone bears the substantial burden of showing 

a fair and just reason for withdrawal. See United States v. Jones, 336 F.3d 245, 252 (3d 

Cir. 2003). The District Court “must consider three factors when evaluating a motion to 

withdraw a guilty plea: (1) whether the defendant asserts his innocence; (2) the strength 

of the defendant‟s reasons for withdrawing the plea; and (3) whether the government 

would be prejudiced by the withdrawal.” Id. (citations omitted). “A shift in defense 
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tactics, a change of mind, or the fear of punishment are not adequate reasons to impose 

on the government the expense, difficulty, and risk of trying a defendant who has already 

acknowledged his guilt by pleading guilty.” Brown, 250 F.3d at 815 (quotation marks 

and citation omitted).

As defense counsel asserts, there is no merit to Cidone‟s claim that the District 

Court abused its discretion in denying the motion to withdraw his guilty plea. In 

asserting his innocence, Cidone merely argues that the drugs found in the vehicle did not 

belong to him. However, “[a]ssertions of innocence must be buttressed by facts in the 

record that support a claimed defense.” Id. at 818 (quoting United States v. SalgadoOcampo, 159 F.3d 322, 326 (7th Cir. 1998)). Cidone‟s failure to cite to any facts in the 

record to support his assertion of innocence leads us to reject his claim.

In addition to asserting his innocence, Cidone must also “give sufficient reasons to 

explain why contradictory positions were taken before the [D]istrict [C]ourt and why 

permission should be given to withdraw the guilty plea.” Jones, 336 F.3d at 253 (citation 

omitted). Cidone proffers that he pled guilty because he was under a considerable 

amount of stress and under the influence of medication. We find his explanations

insufficient to overcome his substantial burden under Jones. See id. at 252. As discussed 

above, the District Court‟s colloquy was thorough and proper, and the record indicates

that Cidone‟s plea was knowing and voluntary. Additionally, the Government presented 

the testimony of FBI agent Larry Whitehead, who testified that Cidone did not appear to 
8

be under any great deal of stress and that he knowingly and voluntarily, without coercion,

signed a statement that he intended to distribute the cocaine base found in the vehicle.1 

Because Cidone failed to present a fair and just reason for withdrawing his guilty plea, 

the District Court did not abuse its discretion when it denied his motion.

E.

Defense counsel next contends there is no non-frivolous argument that the District 

Court erred in determining Cidone was a career offender under the U.S. Sentencing 

Guidelines or in any other aspect of sentencing. We exercise plenary review over 

questions of law, including interpretations of the Sentencing Guidelines. See United 

States v. Hull, 456 F.3d 133, 137 (3d Cir. 2006). When reviewing the District Court‟s 

sentencing decision, we first determine whether the District Court committed a 

significant procedural error, and if no significant procedural error is found, we determine 

whether the ultimate sentence imposed was substantively reasonable under an abuse of 

discretion standard. See United States v. Brown, 595 F.3d 498, 526 (3d Cir. 2010).

The District Court correctly held that Cidone qualified as a career offender under 

the Sentencing Guidelines because (1) he was at least eighteen years old at the time he 

committed the crime; (2) the current conviction is for a felony that is a crime of violence 

 

1 We need not reach the third factor regarding whether the Government would be 

prejudiced because the Government “is not required to show prejudice when a defendant 

has shown no sufficient grounds for permitting withdrawal of a plea.” United States v. 

Martinez, 785 F.2d 111, 116 (3d Cir. 1986) (citation omitted).
9

or a controlled substance offense; and (3) he has at least two prior felony convictions of 

either a crime of violence or a controlled substance offense. See U.S.S.G. § 4B1.1(a). 

The first two conditions are not in dispute, and the third condition is also met given 

Cidone‟s two prior convictions for drug trafficking and criminal restraint. Because 

Cidone conceded in the District Court that his 1997 Pennsylvania conviction for 

manufacturing, delivery, or possession with intent to manufacture or deliver a controlled 

substance was a qualifying predicate for career offender status, only his 2000 New Jersey 

conviction for criminal restraint is at issue here.

When evaluating prior convictions for career offender purposes, we employ a 

categorical approach and “„look only to the fact of conviction and the statutory definition 

of the prior offense.‟” United States v. Stinson, 592 F.3d 460, 464 (3d Cir. 2010) (citing 

Taylor v. United States, 495 U.S. 575, 602 (1990)). Under this approach, we must 

(1) “establish for which specific crime [Cidone] was convicted”; (2) “interpret the 

necessary elements of that crime”; and (3) “determine whether those elements necessarily 

bring the prior crime within the definitions of [a crime of violence or a controlled 

substance offense].” See United States v. Remoi, 404 F.3d 789, 792-93 (3d Cir. 2005) 

(citation omitted). Under New Jersey law, Cidone was convicted for “knowingly . . . 

[r]estrain[ing] another unlawfully in circumstances exposing the other to risk of serious 

bodily injury,” N.J. Stat. Ann. 2C:13-2 (emphasis added), which is punishable by a 

maximum of five years‟ imprisonment. N.J. Stat. Ann. 2C:43-6. Under the Sentencing 
10

Guidelines, a “crime of violence” includes “any offense under federal or state law, 

punishable by imprisonment for a term exceeding one year, that . . . involves conduct that 

presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2) 

(emphasis added). Accordingly, Cidone‟s third degree criminal restraint conviction fits 

squarely within the definition of “crime of violence” under the Sentencing Guidelines and 

qualifies as a predicate offense for career offender status.

Furthermore, there is no non-frivolous argument that Cidone‟s sentence was 

procedurally or substantively unreasonable. The District Court took into consideration all 

of the relevant factors under 18 U.S.C. § 3553 and contained in the Presentence 

Investigation Report. It correctly calculated Cidone‟s offense level and criminal history 

category, resulting in a Guidelines range between 262 and 327 months of imprisonment. 

The District Court also took into consideration the disparity in the Guidelines between 

crimes relating to powder cocaine base and crack cocaine and sentenced Cidone to 120 

months‟ imprisonment, well below the Guidelines range. Therefore, Cidone‟s sentence 

was procedurally and substantively reasonable, and the District Court did not abuse its 

discretion.2

 

2 Cidone also asserts that the District Court erred in denying his motion to 

suppress the evidence and that his right to speedy trial was violated. However, Cidone‟s 

subsequent guilty plea waived his right to appeal these issues. See Tollett v. Henderson, 

411 U.S. 258, 267 (1973). Thus, we need not reach the merits of the claims.
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IV.

For the reasons set forth above, we will affirm the judgment of the District Court 

and grant defense counsel‟s motion to withdraw.