2011 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

3-10-2011 

# U S A v . S a n t a n a
P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 07-4410

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2011

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the 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 a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2011 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" U SA v . S a n t a n a " (2011). 2011 D e cisio n s . P a pe r 1682. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2011/1682NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________
No. 07

- 4410

_____________ UNITED STATES OF AMERICA

v. RAFAEL INOA SANTANA , Appellant Appeal from the District Court for the Virgin Islands , Di vision of St. Thomas and St. John

(Crim. No. 03

- cr - 000 65 ) District Judge: Hon. Raymond L. Finch Submitted Pursuant to Third Circuit LAR 34.1(a)

December 13 , 2010 Before: McKEE , Chief Judge , FUENTES and SMITH , Circuit Judges ,

(Opinion filed March 10, 2011 )

OPINION

McKee, Chief Judge

Rafael Inoa Santana appeals the judgment of conviction and sentence of the Distric t Court for the Virgin Islands that resulted in hi s being ordered to serve a sentence of 188 month s in prison

. His attor n e y has filed a b rief pursuant to Anders v. California , 386 U.S. 738 (1967) , in which he claims that there are no nonfrivolous issues for appeal2

and asks to be relieved from representing Santana. For the reasons addressed below, we will grant counsel’s petition and affirm the conviction and sentence.

I.

Because we write primarily for the parties, it is not necessary to recite the facts of this case at length

.
It is sufficient to not e that Santana entered into a negotiated guilty plea to conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841, 846. Santana agreed that if the trial court granted a sentencing reductio n of at least two levels , he would waive his right to ap peal

. The trial court determined that Santana’s base offense level under the Sentencing Gu idelines was 38. The court adjusted the level to 36 pursuant to the plea agreement and the government’s § 5K1.1 letter motion

. A

. 36 . The resulting offense level yielded a suggested sentencing range of 188

- 235 months imprisonment. As
not e d, the court sentenced Santana to 188 months imprisonment to run concurrently with a sentence issued by the District Court for the District of Puerto Rico , and imposed a five year term of supervisory release. As a special condition of supervised release, Santana

was ordered not to reenter the United States without the written permission of the United States Attorney General. This appeal followed. 1

As noted above, Santana’s appointed counsel has filed a motion to withdraw and

an Anders brief stating that he is unable to identify any non

- frivolous issues for review.

1 We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).3

In accordance with LAR 109.2(a), the government and Santana were provided with a copy of the Anders brief. Not surprisingly, the g overnment agreed with defense counsel’s assessment that any appeal would b e frivolous. Santana did not file a response.

II.

When counsel submits an Anders brief, we must determine: (1) whether appellate counsel fulfilled the requirements of LAR 109.2(a), and (2) whether an independent review of the record presents any non

- fr ivolous issues. United States v. Youla , 241 F.3d 296, 300 (3d Cir. 2001). In order to adequat ely fulfill the requirements of LAR 109.2, the Anders brief must “satisfy the court that [counsel] has thoroughly scoured the record in search of appealable iss ues” and must “explain why the issues are frivolous.” United
States v. Marvin , 211 F.3d 778, 780 (3d Cir. 2000). Where the Anders brief is adequate, we review only portions of the record implicated by the brief. Youla , 241 F.3d at 301.

Counsel identifie s four potential issues for appeal and concludes they are all frivolous. The issues he identifies are: (1) the district court’s jurisdiction ; (2) the plea ’s validity ; (3) the validity and enforceability of the appellate waiver , and (4) the sentence’s lega lity

. We find counsel’s Anders brief to be adequate, and therefore confine our review of the record to the issues set forth in the brief.

The first issue would clearly be frivolous because Santana was charged with a federal crime; hence, the district co urt had jurisdiction pursuant to 18 U.S.C. § 3231.4

The second issue would also be frivolous because Santana’s guilty plea was valid. Santana has not introduced any evidence that his guilty pl ea was not voluntary and knowing, and the record demonstrates that the plea complies with the standards set forth
in Boykin v. Alabama , 3 95 U.S. 238 (1969) and Federal Rule of Criminal Procedure 11.
As for the third issue, appeal waivers are valid and enforceable as long as the

wa iver was voluntary and knowing and en forcement does not work a miscarriage of justice. United States v. Khattak , 273 F.3d 557 , 558 (3d Cir. 2001). Appealing the validity of the waiver would be frivolous because, like the guilty plea, the record shows that Santana entered into the appeal wai ver “knowingly, voluntarily, and upon the advice of counsel.” App. 000047. Santana also received the two offense level deduction agreed to in exchange for waiving his right to appeal, and enforcing the waiver would clearly not amount to a miscarriage of j ustice.
Finally, because Santana expressly agreed to waive any right to appeal his sentence, an attempt to do so would be frivolous. T he sentence was not illegal. It did not exceed the statutory maximum for the crime charge d , and it was proc edurally and substantively reasonable. Because Santana is not a United States citizen, the trial court did not abuse its discretion when it imposed a special condition prohibiting Santana from

re - entering the United States without written permission of the Attorney Ge neral.5 III.

Accordingly, we will affirm the judgment of conviction and sentence. Defense counsel’s motion to withdraw will be granted.