NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 09-3562

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UNITED STATES OF AMERICA

v.

RAFAEL DOMINGUEZ,

Appellant

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On Appeal from the United States District Court

For the Middle District of Pennsylvania

(D.C. Criminal Action No. 1-07-cr-00064-004)

District Judge: Honorable Christopher C. Conner

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Submitted Under Third Circuit LAR 34.1(a)

April 18, 2012

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Before: SCIRICA, AMBRO and NYGAARD, Circuit Judges

(Opinion filed: April 19, 2012)

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OPINION

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AMBRO, Circuit Judge

Rafael Dominguez pled guilty to criminal forfeiture and conspiracy to distribute 

and possess cocaine hydrochloride in March 2009. The District Court for the Middle 

District of Pennsylvania sentenced Dominguez five months later, and he filed a timely 
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notice of appeal. Subsequently, Dominguez’s attorney moved to withdraw as counsel 

under Anders v. California, 386 U.S. 738 (1967), asserting that all potential grounds for

appeal are frivolous. Dominguez has filed a pro se brief in support of his appeal. We 

grant his counsel’s Anders motion, affirm the judgment and sentence of the District 

Court, and dismiss without prejudice the ineffective-assistance-of-counsel claim that 

Dominguez asserts for the first time on appeal.

I.

A federal grand jury charged Dominguez with (1) conspiracy to distribute and 

possess with intent to distribute five kilograms or more of cocaine hydrochloride in 

violation of 21 U.S.C. § 846; (2) distribution and possession with intent to distribute five 

kilograms or more of cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1); (3) 

distribution and possession with intent to distribute 50 grams or more of cocaine base in 

violation of 21 U.S.C. § 841(a)(1); and (4) criminal forfeiture in violation of 21 U.S.C. 

§ 853.

Over a year later, the Government filed a two-count superseding felony 

information that charged only the first and fourth offenses on the indictment. At the same 

time, Dominguez pled guilty to those two charges in a written plea agreement. That

agreement included a waiver of his rights to direct and collateral appeal.

The District Court then held a plea hearing. There, it addressed Dominguez 

through a Spanish-language interpreter. Dominguez affirmed that he could understand 

the Court’s questions through the interpreter. In the ensuing plea colloquy, the Court 

advised Dominguez that he had rights to direct and collateral appeals and that his plea 
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agreement waived those rights. Dominguez indicated that he understood and agreed. 

The Court further ensured that Dominguez had read and understood the waiver provision 

in his plea agreement.

After the Court accepted Dominguez’s plea but before the sentencing hearing, 

Dominguez moved to withdraw his plea. He asserted that he had not properly understood 

the interpreter at his plea hearing and that he was not in possession of drugs when he was 

arrested. The Court denied his motion and sentenced him to 121 months of 

imprisonment, a $1,000 fine, a $100 special assessment, and three years of supervised 

release.

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

under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

II.

A.

Our rules provide that “[w]here, upon review of the district court record, counsel 

is persuaded that the appeal presents no issue of even arguable merit, counsel may file a 

motion to withdraw and supporting brief pursuant to Anders.” 3d Cir. L.A.R. 109.2(a).

If we concur with trial counsel’s assessment, we “will grant [the] Anders motion, and 

dispose of the appeal without appointing new counsel.” Id. Accordingly, our “inquiry is 

. . . twofold: (1) whether counsel adequately fulfilled the rule’s requirements; and (2) 

whether an independent review of the record presents any nonfrivolous issues.” United 

States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).
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In his Anders brief, Dominguez’s counsel identifies three potential grounds for 

appeal: (1) that Dominguez’s waiver of appeal was not knowing and voluntary; (2) that 

the waiver of appeal would result in a miscarriage of justice; and (3) that the District 

Court abused its discretion in denying Dominguez’s motion to withdraw his guilty plea. 

Our review of the record confirms counsel’s assessment that there are no nonfrivolous 

issues for direct appeal.

First, “we will not exercise . . . jurisdiction to review the merits of [Dominguez’s] 

appeal if we conclude that []he knowingly and voluntarily waived [his] right to appeal.” 

United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). Save for Dominguez’s pro 

se brief, which we address below in section II.B, the record offers no indication that 

Dominguez’s waiver was not knowing and voluntary. The plea agreement states that he

had a right to appeal. It then adds: “Acknowledging all of this, the defendant knowingly 

waives the right to appeal any conviction and sentence . . . .” The District Court asked 

Dominguez whether he had “carefully reviewed this paragraph with [his] attorney,” and 

Dominguez responded that he had. The Court separately advised Dominguez of his 

appeal rights and asked: “Do you understand that this plea agreement severely limits your 

right to appeal and prevents you from using later proceedings like a collateral attack and 

habeas corpus to challenge your conviction, sentence, or any other matter?” Dominguez 

again affirmed that understanding. With this colloquy, the Court ensured Dominguez’s

understanding of “the terms of any plea-agreement provision waiving the right to appeal 

or to collaterally attack the sentence.” Fed. R. Crim. P. 11(b)(1)(N).
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Second, we may nonetheless exercise appellate jurisdiction if enforcing the waiver 

of appeal “would work a miscarriage of justice.” Gwinnett, 483 F.3d at 203. In making 

that determination, we consider, among other factors, “the clarity of the error, its gravity, 

its character (e.g., whether it concerns a fact issue, a sentencing guideline, or a statutory 

maximum), the impact of the error on the defendant, the impact of correcting the error on 

the government, and the extent to which the defendant acquiesced in the result.” United

States v. Mabry, 536 F.3d 231, 242-43 (quotation marks and citation omitted). Because 

the record does not reveal a specific error, we agree that enforcement of Dominguez’s 

waiver would not work a miscarriage of justice.

Third, even if we act on our jurisdiction, we agree that the District Court did not 

abuse its discretion in denying Dominguez’s motion to withdraw his guilty plea. “A 

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.” United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003). The 

District Court expressly addressed these factors at the sentencing hearing. Dominguez 

did not assert his innocence, and his active participation in the plea colloquy undermines 

his claim that he did not understand the interpreter.

In sum, the record indicates that Dominguez made a knowing and voluntary 

waiver of his right to appeal, that enforcing that waiver would not work a miscarriage of 

justice, and that even if we accepted jurisdiction, the District Court did not abuse its 

discretion in denying Dominguez’s motion to withdraw his plea. We therefore agree with 
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Dominguez’s counsel that none of the conditions that could overcome an appellate 

waiver exists here and that there is no nonfrivolous basis on which he may appeal at this 

time.

B.

Dominguez attempts to supplement the record in his pro se brief. Specifically, he 

alleges that his plea agreement, including its waiver provision, was not knowing and 

voluntary due to certain advice he received from counsel. The affidavit that Dominguez 

has attached to his brief is the only evidence before us concerning these allegations.

“It has long been the practice of this court to defer the issue of ineffectiveness of 

trial counsel to a collateral attack.” United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 

2003); see also United States v. McLaughlin, 386 F.3d 547, 555-56 (3d Cir. 2004).1

 1 We have recognized an exception to this practice where “the record is sufficient to 

allow determination of the issue.” Thornton, 327 F.3d at 271. That exception does not 

apply here.

 

Those claims typically involve facts that are not developed in the record, and our Court is 

ill suited to developing the facts. “When an ineffective-assistance claim is brought on 

direct appeal, appellate counsel and the court must proceed on a trial record not 

developed precisely for the object of litigating or preserving the claim and thus often 

incomplete or inadequate for this purpose.” Massaro v. United States, 538 U.S. 500,

504-05 (2003). Those problems are exacerbated where, as here, the same counsel was 

appointed to represent the defendant both at trial and on direct appeal.
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The appropriate way for Dominguez to challenge the effectiveness of his counsel, 

and thus the voluntariness of his appeal waiver, is an application for a writ of habeas 

corpus under 28 U.S.C. § 2255. We express no opinion on the merits of his

ineffectiveness claim at this time. We do note, however, that our decision not to decide

this issue may not be construed as a bar to an ineffectiveness claim in a collateral 

challenge. See Massaro, 538 U.S. at 509.

* * * * *

Counsel adequately fulfilled the requirements of Anders. We therefore grant 

counsel’s motion to withdraw, affirm the judgment and sentence of the District Court, 

and dismiss without prejudice the ineffective-assistance-of-counsel claim.