2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-6-2009

USA v. Jacinto Barraza

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3277

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Recommended Citation

"USA v. Jacinto Barraza" (2009). 2009 Decisions. Paper 1070.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-3277

_____________

UNITED STATES OF AMERICA

v.

JACINTO BARRAZA,

 Appellant

_______________

On Appeal From the United States District Court 

for the Eastern District of Pennsylvania

(Criminal No. 07-00085-02)

District Judge: Honorable Petrese B. Tucker

Submitted Under Third Circuit LAR 34.1(a)

May 28, 2009

Before: FISHER, CHAGARES, and COWEN, Circuit Judges.

(Filed: July 6, 2009)

__________________

OPINION OF THE COURT

__________________

CHAGARES, Circuit Judge.

Counsel for Jacinto Barraza has moved, pursuant to Anders v. California, 386 U.S.

738 (1967), for permission to withdraw as counsel in this case. For the reasons that
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has 1

jurisdiction under 28 U.S.C. § 1291.

Prior to trial, Barraza filed a motion to suppress physical evidence, asserting a 2

lack of valid consent to search his vehicle or dismantle it in the course of conducting the

search. The District Court denied the motion.

2

follow, we will grant the motion and affirm Barraza’s sentence.

1

I.

Because we write solely for the benefit of the parties, we will only briefly

summarize the essential facts.

On March 11, 2008, Barraza pleaded guilty, pursuant to a plea agreement, to one

count each of conspiracy to distribute 500 grams or more of methamphetamine, in

violation of 21 U.S.C. § 846; distribution of, and aiding and abetting the distribution of,

500 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A);

and unlawful use of a communication facility, in violation of 21 U.S.C. § 843(b). In the 2

plea agreement, the Government agreed that Barraza was eligible for a two-point

reduction in his offense level under the advisory Sentencing Guideline for acceptance of

responsibility, as well as a three-point reduction for his role as a minor and minimal

participant in the offense. The parties also agreed that Barraza’s sentencing guidelines

range should be calculated on the basis of 8.5 pounds of methamphetamine.

Under the terms of the plea agreement, Barraza maintained the right to appeal or

collaterally attack his sentence in only three limited circumstances: (1) the sentence on

any count exceeded the statutory maximum; (2) the sentencing judge erroneously
3

departed upward pursuant to the Sentencing Guidelines; and (3) the sentencing judge

imposed an unreasonable sentence above the Sentencing Guideline range. A presentence

investigation report was prepared. Accepting all of the stipulations between the

Government and Barraza, the report calculated Barraza’s total offense level at 70-87

months. It went on to say, however, that “because of the mandatory minimum, the

effective guidelines range is 120 months.”

On July 22, 2008, after a sentencing hearing, Barraza was sentenced to 120 months

of imprisonment. The District Court stated that “Congress has determined what sentence

one in your position should receive. There are no exceptions, and just as you are bound,

the Court is bound or mandated to sentence you to this mandatory sentence.” Barraza

timely appealed.

II.

Barraza’s counsel petitions this Court to withdraw as attorney of record, arguing

that there are no non-frivolous issues that can be advanced on appeal. A copy of defense

counsel’s brief was furnished to Barraza, and he was given until February 17, 2009 to file

a brief on his own behalf, and Barraza failed to do so by the given date. Barraza filed his

pro se informal brief with this Court on March 6, 2009.

Evaluation of an Anders brief requires a twofold inquiry: (1) whether counsel has

thoroughly examined the record for appealable issues and has explained why any such

issues are frivolous, and (2) whether an independent review of the record presents any
4

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

the Anders brief appears adequate on its face, and the appellant has not submitted a pro se

brief, our review is limited to the portions of the record identified in the Anders brief. 

See id. at 301. We conclude that the brief in this case is adequate, and thus, it will guide

our independent review of the record.

Barraza’s counsel examined the record and concluded that any claim that he could

raise on Barraza’s behalf would be frivolous, given the three categories of issues

available for Barraza to raise on appeal under the provisions of his appellate waiver. 

Likewise, our independent review of “those portions of the record identified by [the]

Anders brief,” as well as those issues identified by Barraza in his pro se brief, reveals no

non-frivolous issues Barraza might profitably raise on direct appeal. See id. As

Barraza’s counsel points out, none of the issues carved out as part of the appellate waiver

agreement occurred at sentencing, and thus there is no basis for appeal.

Accordingly, we will grant counsel’s motion and will affirm Barraza’s sentence.