2004 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
8-9-2004 

# U S A v . C oplin
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 . 03-1570

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NOT PRECED ENTIAL

UNITED S TATES COUR T OF APPEAL S FOR THE THIRD CIRCUIT

No. 03-1570

UNITED STATES OF AMERICA

v. JEFFREY COPL IN ,

Appellant On Appeal from the United States Distri ct Court for the Eastern District of Pennsylvania (Dist. Ct. No. 00-cr-00745 ) District Judge: Honorable J. Curtis Joy ner

Submitted Under Third Circuit LAR 34.1(a)

June 24, 2004 Before: NYGAARD , McKEE and CHERTOFF , Circuit Judges

. (Filed: August 9, 2004 )

OPINI ON

CHERT OFF, Circuit

Judge

. Jeffrey Coplin appea

ls his c onviction for

two counts of di stribut

ion of cocai ne1 This provis ion provides , in pert inent par t: “If a ny pe rson com mitssuch a violati on after a

prior convi ction for a

felony drug offense ha s becom

e final, such pers on shall be sentenc ed to a te

rm of im prisonm ent which m

ay not be les s than 20 y

ears a nd not more t han life impris onment . . . . [I]f t here was such a pri or convict ion, im pose a te rm of supervis ed rele ase of at

least 10 ye ars in a

ddition to s uch term

of impri sonment .” 21 U.S.C. § 841. 21 U.S.C . § 860 in corporates the mandatory minimums set forth in 21 U .S.C. § 841. See 21 U.S.C . § 860(a), (b ) (“Except to the extent a gre ater minimum sentence is otherwise pro vided by section 84 1(b) of th is title, a person shall b e sentenced u nder this subsect ion . . . . ”). More over, as noted in the Present ence Inve stigat

ive Report

(PSR), the penalti es for viol ation of 21 U.S. C. § 841 and 21 U.S.C. § 860 merge and do not rec eive separate sentences. 2 base, in violati on of 21 U.S.C. § 841(a )(1), a nd two counts of di stribut ion of cocai ne base within 1 ,000 feet o f a public p layground, in vio lation of 2 1 U.S.C. § 860. Co plin pled guilt y t o all count s. The Dis trict Court sent

enced Coplin to concurr

ent sent ences of 20 years imprisonment a

nd 10 years supervis ed release, t he mandatory

minimum

where a defenda nt has previo usly been convicted f or a felony drug offense. See 21 U.S.C . § 841. 1 Attorney W ayne R. May nard filed a motion to withdraw as counsel for Coplin. In support of the

motion t o withdraw, Maynard has fil ed a brie f pursuant to Anders v. Calif ornia , 386 U.S. 738 ( 1967) and Third Ci rcuit Local Appella te Rule ( L.A.R.) 109. 2(a) in w hich he m ainta ins th at the re ar e no non friv olo us g rou nds for an a ppe al. In additi on, Coplin has filed a pro se brief, in accorda nce with L. A.R. 109.2(a

). For the reasons stated below, w e will affirm the District C ourt’s jud gment and gran t the motion to withdraw.2 This provis ion provides , in pert inent par t: “Upon m

otion of the gove

rnment stating that the

defendant ha s provided s ubstanti al ass istanc e in the investiga tion or prosecut ion of another

person who has comm

itted a n offense, t

he court m

ay depart fr om the guidelines.” U.S.S.G. § 5K1. 1.

3 I. This Court’ s inquiry

when counsel

submit s an Anders brief istwofold: (1) whether Couns el adequa

tely fulfille d L.A.R. 109.2( a); and ( 2) whether an independent review of the record p resents any nonfriv olous issues. United States v . Youla , 241 F.3d 296, 300 (3d Cir. 2001). In orde r for counsel to discharge hisduty under the fi

rst prong, the brief must “(1) . . . satisfy the court that counsel has thoroughly examined the record in search of appealable iss ues, and (2) . . . explain why the issues are fri volous.” Id. at 300. “Wher e the Ander s brief initially appears adeq uate on its face , the proper c ourse ‘is for the appellate court to be guided in reviewing the record by the Anders brief itself.’” Id. at 301 (quoting United States v. Wagner , 103 F.3 d 551, 5 53 (7th Cir. 1996 )). We concl ude that t he brief i n this ca se is a

dequate, and therefore it gui des our independ ent review of

the record. See Yo ula , 241 F.3 d at 3 01. Maynard rai ses the following seven issue s in his br ief: (1) Was the

Appellant ’s guilt

y pl ea knowingly

and voluntari ly

entere d?; (2) Did t

he Distr ict Court comm it an abus e of discr

etion in de

nying the Appell ant’s pr

e-sent ence m otion to wit

hdraw his gui lty

plea?; ( 3) Did the Government violate the law in not enter ing a plea agreement with the Appellant that cal led t o ma ke a m otion pursu ant t

o §5K1.1 of the

Sente ncingGuide line s?; 2 (4) Is3 Maynard expla ins in hisbrief: “ Following the filing of the

notice of a

ppeal, t he appella nt sent c ounsel var

ious let ters whe rein he s et forth i ssues he wished ra

ised on appeal. ” Appella

nt Br. at 7.

4 Coplin ad vances the f ollowing six issues in his pro se brief: ( 1) Was t he Appellant a victim of sel ective

prosecut ion?; (2) W as the Appellant a victim of sentencing en trapment?; (3) D id the District Co urt commit an abuse of discretion in denying the Appellant’spresent encing m otion to wit

hdraw his gui lty

plea?; (4) Did the Distri ct Court e

rr in not crediting the Appell ant for ac ceptanc e of respons ibilit y pur suant to § 3E1.1?; (5) Was Appellant’sguilty plea volunt

arily and intelligentl

y m ade?; (6) Were the Government’s m otives for not awarding a downward departure uncons tit ution al? 4 resentencing required because c ounsel allegedly did not review the pre-sentence report with the Appellant and because the pre-sente nce report contained an erroneous crim inal history ?; (5) Did t

he Distr ict Court err in not credit ing the Appellant for a

ccepting responsi bility pursuant t

o § 3E1.1 of the Sent

encing Guidelines?; (6) Is r esente ncing require d on account of s entencing entrapm ent on the pa

rt of the gove

rnment ?; and (7) Are 21 U.S.C. § 841(b)(1)(A) and (B) facially unconstitutional? Notably, Coplin appears to have specif ically advised Maynard of the issu es he wanted raised on app eal. 3 Coplin p resents almost the identical issu es in his pro se brief. 4 The only argume nt that a ppears t o be distinct is hi s claim that he was the

victim of selec tive prosecut ion. After reviewing the rec ord, we agr ee with c ounsel tha

t there are no nonfriv olous gro unds fo r appeal.

II. First, Judge Joy

ner fully compli ed with the

requirementsof Federal

Rule of5 “A district court must co nsider three f actors when evaluating a motio n to

withdraw a g uilty plea: (1) whether the defenda nt asserts his inno cence; (2) the stren gth of the defenda

nt’s re asons for withdrawing t he plea; and (3) whet

her the gove

rnment would be prejudiced by the withdrawal.” Jones , 336 F.3 d at 252. 5 Criminal Procedure 11 in conducting the plea colloquy , ensuring that Coplin was entering into the plea knowingly a nd voluntarily, a

nd was aware of the 20 year mandatory minimum. Second, the

Distri ct Court di d not abuse its disc retion in denying Coplin’smotion to withdraw his guilty plea. See United States v. Jones , 336 F.3d 245, 252 (3d Cir. 2003). “O nce a court accep ts a defenda nt’s guilty plea, the defen dant is not en titled to withdraw that plea sim

ply at his whim. Rather, pursuant to Federa l Rule of Criminal Procedure

32(e), a defendant m

ust have a

‘fair a nd just rea son’ for wit

hdrawing a pl ea of guilty. ” Id. at 252 (internal citat ions omitted). 5 Coplin conce ded at the hearing on t

he motion to withdraw the guilty plea that he responded truthfully at the plea colloquy

when he indica ted that he enter ed the ple a freel

y a nd voluntari ly , and had not be en given any promises or assuranc es in an eff ort to indu ce a guilty plea. See App. at 44 a. Third, the Government did not violate the law in not enteri ng into a plea agreement with the Appella nt that called to make a §5K1.1 motion. “[T]he prosecutor’s discretion to file [a §5K1.1] motion [is] almost unfettered: the government’s r efusal could only

be chall enged if it

‘was bas ed on an unconst itutiona l moti ve,’ li

ke race or religion.” United States v. Isaac , 141 F.3d 477, 481 (3d Ci r. 1998) (quot

ing Wade v. United States , 504 U.S. 181, 185- 86 (1992)). Coplin’s as serti on that he “ was denie d a6 Coplin’s testimon y on cross-examination by the Go vernment prov ides, in

pertinent part: Q. At some point wasn’t it com municated to you that the information that you provided was not going to be enough to earn you a downward departure? Were you told that? A. By you? Q. Yes. A. I think I remember you telling me that. Q. Okay. And, in fact, y ou then pled guilty without the benefit of a plea agreement that

contained any l anguage about a motion for a downward departure, co rrect? A. Well, the plea a

greement, ther

e was none. Mr. Martir [Coplin’s counsel] to ld me that we had a deal . . . . He didn ’t say a plea agreement. Q. Before or after y our plea? A. Before my plea. Q. But you didn ’t sign anything. Yo u never saw a plea agreement? A. No. Q. You d idn’t tell the ju dge that on e existed, correct? A. No, I did n’t. 6 downw ard departu re to retaliate against h is sister [sic] decision not to take D EA agents directly to the target’s house and introduce undercover DEA agent to target,” Coplin Br. at 16, does not fall within these narrow grounds for challenging the prosecutor’s discretion. Coplin suggests that he was s omehow misled into believing there was an agreem ent beca use the pr osecutor told him the § 5K1.1 m

otion “wasalrea

dy t ype [d] out and that she had forgot and left it on her desk at her office and she would make sure that she had it with her t

he next time we ha

d a mee ting.” Copl

in Br. at 14. However, at the plea colloqu y Coplin indicated th at he had no t been given any promises or assurances in an effo rt to induce h is plea, see App. at 14 a, and Cop lin affirmed the tru thfulness o f these responses at the h earing on th e motion to with draw the gu ilty plea, see id. at 51a-52a. 6Q. When you were ask ed whether or not there w ere any promises made to

you to induce you to plead guilty, you said no, there were n ot, correct? A. Yes, I did. App. at 51 a-52a. 7 Fourth, there is no evidence that counsel fail ed to review the pre-sentence r eport or that the report contained an erroneous criminal history . Maynar d indicated at Coplin’s sentencing h earing that he h ad an opp ortunity to review the p resentence repo rt with his client, see App. at 94a, and Coplin did not raise either of these obje ctions whe

n given the opportu nity to address the District Co urt prior to th e imposition of his sentence, see id. at 95a. Fifth, the

Distri ct Court di d not err in not crediting Coplin for accept ing responsi bility pursuant t

o § 3E1.1 of the Sent

encing Guidelines. Because the Sente ncing Guideline s cannot s upersede the sta tutory minim um, the Distri ct Court ha

d no discre

tion to grant a do wnward d eparture. See United States v . Tannis , 942 F.2d 196, 198 (3d Cir. 1991). Sixth, there is no evidence supporting the charge of sentencing entrapm ent, which “‘occurs wh en a defen dant, althou gh predisp osed to commit a minor or lesser o ffense, is entrapped into commit

ting a greater offense subject to greate r punishment.’” United States v. Sumler , 294 F.3d 579, 582 (3d Ci r. 2002) (quot

ing United Sta

tes v. Ramirez-Rangel , 103 F.3d 1501, 15 06 (9th Cir. 1997)). Seventh, we

find frivolousCoplin’s c laim of selec tive pros ecution on t he grounds7 In the en banc Buckland opinion, the

Ninth Circuit rea soned that following the Supreme Court’s de cision in Apprendi v. New Jersey , 530 U.S. 466 (2000), the Court was not “bound by our pre- Apprendi holdings tha t these statut es com mit de term ination of drug quantity to a judge for a finding under the preponderance standard.” 289 F.3d at 567. That is , the st

atute wa s inter

preted t o avoid a cons tituti onal proble m. In s o holding, Buckland comported with the conclusio n reached b y many of our sister circ uits that 8 that “[i]f law enforcement didn’t need the appell ant[’s] sister [as a confidential informant], he would not have been prosecuted.” Coplin Br. at 7. To begin, “[a] selec tive-pr

osecuti on claim

is not a defense on the

merits to the

crim inal cha rge its elf, but an independent assertion that the prosecut or has brought the charge for reasons forbidden by the Constituti on.” United Sta tes v. Ar mstr ong , 517 U.S. 456, 463 (199 6). Moreover, there i s no support in the rec ord for thisargume nt, and, a t any rate it does not a

mount to a claim of selective pro secution fo r unconstitu tional reasons.

III. There is only one arg ument that gives u s pause. Cop lin contend s that 21 U.S .C. § 841(b)(1 )(A) and (B ) are facially unconstitutio nal. As Maynard exp lains, Coplin sent a lette r to thisCourt and May

nard, cont

ending that

the Ninth Ci

rcuit’ s decis ion in United Statesv. Buckland , 259 F.3d 1157 (9th Ci r. 2001) suppor

ts his c laim

that thi s provisi on is unconstitutional. As May nard points out, however, the Ninth Circuit reversed that decision on rehearing en banc. See United Sta tes v. Buckland , 277 F.3d 1173 (9th C ir. 2002) (en banc), amende d and supers eded by United Sta tes v. Buckland , 289 F.3d 558 (9th Cir. 20 02) (en ba nc), cert. denied , 535 U.S. 1105 (2002 ). 7§ 841 is n ot facially unconstitutio nal. See id. at 562 n.1 (citing cases).

9 While Copl

in’s reliance

on Buckland

is eas ily dismi ssed, hi s argum

ent rai ses the more interes ting quest

ion whether

Coplin has a

nonfrivolous gr

ound for appeal

based on the Suprem

e Court’srecent

decisi on in Blakely

v. Washington , 124 S. Ct. 2531 (2004), rendere d after t

he filing of t

he briefs in this c ase. W

ithout delving into the

many

co mp le x q ue st io ns ra is ed by Blakely , we concl ude that unde

r any interpr etati on of Blakely , Coplin h as no non frivolou s ground for appe al. In Apprendi v. New Jersey , the Supreme Co urt explained that “ [o] ther than t he fact of a pr

ior convi ction , any

fact tha t incre ases t

he penalt y for a crim e bey ond the prescr ibed sta tutory maxim um mus t be subm

itted t o a jury , and proved be

yond a

reasona ble doubt.” 530 U.S. 466, 490 (2000) (empha sis adde d). In Blakely , the Sup reme Court, in a

case r eviewing t

he Washington stat

e sente ncing sche

me, r uled that for the purpos e of Apprendi , “the relevant ‘s tatutory maximum ’ is not the maxim um sentence a judge may impose after fin ding add itional facts, bu t the maximum he may impose without any

additiona

l findings. ” 124 S. Ct. a

t 2537. Even i f Blakely applies to the U nited States Sen tencing Gu idelines, the rule enunciat ed in Blakely would be inapplicable in this case beca use Coplin explicitly

pled guilty to the el ement s of the offens e that a re a pre requisite to the

imposition of the mandatory

minimum

sentence of 20 yea

rs imprisonm

ent and ten ye ars of supervised relea se. Fir st, Coplin specifi cally pled to knowingl

y a nd intenti onally

distri buting or8 At one point dur ing the se ntencing he aring, Copl

in atte mpted t o object to t

he imposition of a ten year term of supervised release. J

udge Joyner explained that this was the mandatory supervised release term under the statu te, and directed Coplin to the PSR. See App. 99 a-100a. 10 possessing w ith the intent to distribute in ex cess of 50 g rams of cocaine b ase. See App. at 19a-20a ; 21 U.S.C. § 841( b)(1)(A) (iii) . These fa

cts and qua

ntitie s manda

te the imposition of a “term

of imprisonment which ma y not be les s than 10 year s” and “a term of superv ised release of at least 5 years.” 21 U.S.C. § 84 1(b)(1)(A ). Second, Coplin was subjec t to the increas ed penalt y of “ a term

of impri sonment which ma y not be lessthan 20 years” and “a te rm of supe

rvised r eleas e of at le ast 10 yea rs in addition to such term of im prisonment” because of his prior c onviction for a felony drug offense. Thus, the onl y fa ct rel evant to Copl

in’s se ntence, other tha

n the elements to which h e specifically pled, was the f act of a prio r conviction

. The prior conviction was not disputed at sentencing. The Presentence Investigative Report (PSR) specifica lly indicated that Coplin agreed and stipulate d that he had been c onvicted of a prior fel ony dr

ug offense, a

nd was ther

efore subje ct to the

en ha nc ed pe na lt y pr ov is io ns of § 8 41 (b )( 1) (A ). PS R ¶ 3( b) . A t t he pl ea co ll oq uy, Coplin ack nowledg ed the 20-year mandatory minimum sentence. See App. at 14 a-15a. At sentencing, Maynard represented that his c lient “underst[ood] that there’s a m andatory minim um . . . of 20 ye ar sent

ence tha t the Court

must impose, ” App. at 95a , and at no point did Coplin raise

an objecti on to the PSR. 8 Moreover, in Almendarez-Torres v. Unite d States , the Supre me Court reject ed the9 In Almendarez-Torres , the fac t of prior c onviction t riggere d an incre ase in t

he maxim um perm issive sentenc e, rat

her than a mandat ory minim um sent ence. The Supreme Cou rt, however , explicitly rejected that such a distinction w as determinative in evaluating th e constitution ality of the provision

. See Almendarez-Torres , 523 U.S. at 244-45

. 11 argument that where the fact of prior conviction made a defendant eligible for an increased sentence, 9 “the Const itution r equiresCongress t

o treat recidi vism a s an ele

ment of the offense

. . . [and] [t

]he Governm

ent mus t prove tha

t ‘ele ment’ to a jury .” 523 U.S. 224, 23 9 (1998 ). Apprendi specifically declined to o verrule the p rior decision in Almendarez-Torres , explaining that “ [b]ecause Almenda rez-Tor res had admitted

the . . . earlier convictio ns . . . —all of w hich had b een entered p ursuant to p roceedings w ith substant ial proc edural s afeguards of their own—no que stion conc erning the right to a jury tri al or the standard of proof that would apply to a contest ed issue of fact was before the Court.” Apprendi , 530 U.S . at 488. Rath er, Apprendi specifi cally limited itsholding to facts “[o] ther than the f act of a prio r conviction .” 530 U.S . at 490. No thing in Blakely overrules Almendarez-Torrez , or the expre ss limitation on the ru le announ ced in Apprendi

. Cf. Blakely , 124 S. Ct. a t 2536 (quoting Apprendi , 530 U.S. at 490) (reit erating that the

rule in Apprendi is that

“[o]ther t han the fac t of a prior

convicti on, any fact that increases the pen alty . . . . ”). We are absolutely

bound by those decisions, for it isthe “[Supreme] Court’s prerogative alone to overrule one of its precedents .” State Oil Co. v. Khan , 522 U.S. 3, 20 (199 7). Even if

we believe tha t the foun dation of a prior Sup reme Court decision is10 We note that Coplin was clearly advise d in the colloquy that he was

surrenderin g his right to have a jury determine the elements o f the off ense, specifically the elements of spec ific quantity of dru gs, and the p roximity to the school. Th is would sat isfy any reading of Blakely

. 11 We also n ote tha t beca use th e issue s prese nted in the ap peal la ck leg al me rit, they do n ot requ ire the f iling of a petition for w rit of ce rtiorari w ith the S upre me C ourt. L.A.R . 109.2(b). 12 thoroug hly undermined, it is up to the Supreme Co urt to complete the d emolition of its own decision. Thus, there is no nonfrivolous claim that Coplin’s sentence violated Blakely

. 10

For the for egoing rea sons, t he judgment of t

he Distr ict Court

will be a ffirmed, and we wi llgr an t Wa y ne R. May na rd ’s mot io n t o wi th dr aw. 11