2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-13-2010

USA v. Ricardo Rhymer

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2697

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-2697

_____________

UNITED STATES OF AMERICA

v.

RICARDO RHYMER,

 Appellant

_____________

On Appeal from the United States District Court

for the District of the Virgin Islands

(Criminal No. 07-cr-00041-01)

District Judge: Hon. Curtis V. Gomez

Submitted May 4, 2010

Before: SMITH, CHAGARES, and JORDAN, Circuit Judges.

(Filed September 13, 2010)

______________

OPINION OF THE COURT

______________

CHAGARES, Circuit Judge.

Ricardo Rhymer pled guilty to two drug trafficking crimes and received a 60-
 The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction 1

under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

2

month sentence. His attorney has filed a motion to withdraw under Anders v. California,

386 U.S. 738 (1967). We will grant the motion and affirm the conviction and sentence.

1

I.

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

the relevant facts.

Agents of the Drug Enforcement Administration (“DEA”) were investigating the

appellant Ricardo Rhymer (“Rhymer”) for suspected trafficking of cocaine base, a

controlled narcotic. On January 26, 2007, they arranged to meet with Rhymer for a

controlled transaction of cocaine base. When Rhymer arrived, the agents placed Rhymer

under arrest. As they did so, Rhymer attempted to dispose of a brown paper bag, which

contained five grams of a substance which later tested positive for cocaine base. 

Rhymer was indicted and charged with possession of five grams or more of

cocaine base with intent to distribute within 1000 feet of a school in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(B)(iii) and § 860(a), as well as possession of five grams or

more of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(B)(iii). 

Rhymer filed a motion to suppress evidence and a motion to dismiss, both of

which were denied by the District Court. On December 5, 2007, Rhymer entered into a
3

plea agreement with the Government. The Government agreed to drop the first charge in

exchange for Rhymer’s agreement to plead guilty to the second charge. 

As part of the plea agreement, Rhymer waived his right to appeal his sentence so

long as it fell within the statutory maximum. Joint Appendix (“JA”) 31-32. At the plea

colloquy, Rhymer acknowledged that he had read and understood the plea agreement, and

that he understood that if he pled guilty he would likely get a sentence of 37 to 46 months

of imprisonment if he qualified for the safety valve provision, but at least 5 years and up

to a statutory maximum of 40 years of imprisonment if he did not qualify for the safety

valve provision. JA 39-44. He also acknowledged that he understood that by pleading

guilty, he was waiving a number of rights, including, inter alia, the right to appeal his

conviction. JA 44-45.

The District Court held a number of sentencing hearings in Rhymer’s case,

primarily to determine whether or not Rhymer qualified for the “safety valve” provision

of 18 U.S.C. § 3553(f), which allows a District Court to sentence a defendant below the

relevant statutory mandatory minimum if certain conditions are met. One of the

requirements to apply the safety valve is that the defendant must be fully informative and

cooperative with law enforcement prior to sentencing. At the sentencing hearings,

Rhymer argued that he should receive the “safety valve.” The Government repeatedly

objected, claiming that he had not given them the required information about his crime.

At the fourth and final sentencing hearing, held on April 10, 2007, the District
4

Court, after learning that Rhymer had still not informed law enforcement from whom he

received the cocaine base, to whom he paid the proceeds from selling the cocaine base,

and who he was in contact with about selling the cocaine base, held that Rhymer did not

meet the requirements for the “safety valve” in 3553(f), and he was sentenced to the

mandatory minimum of 60 months of imprisonment. 

Rhymer filed a timely pro se notice of appeal to this Court. His counsel also filed

a timely notice of appeal and thereafter filed an Anders brief and a motion requesting to

be relieved as counsel, claiming that Rhymer’s appeal raised no non-frivolous issues. 

Counsel filed a timely notice of appeal, thereafter moved to withdraw, and filed an

Anders brief in support of the motion. 

II.

Counsel may seek to withdraw from representation if, after a conscientious

examination of the District Court record, he or she is “persuaded that the appeal presents

no issue of even arguable merit . . . .” 3d Cir. L.A.R. 109.2(a) (2010); see also Anders,

386 U.S. at 744. Evaluation of an Anders motion requires a twofold inquiry: (1) whether

counsel has thoroughly examined the record for appealable issues and has explained in a

brief why any such issues are frivolous; and (2) whether an independent review of the

record presents any nonfrivolous issues. See United States v. Youla, 241 F.3d 296, 300

(3d Cir. 2001). If we determine that “the Anders brief initially appears adequate on its
5

face,” the second step of our inquiry is “guided . . . by the Anders brief itself.” Id. at 301

(quotation marks and citation omitted).

We conclude that counsel’s Anders brief is adequate, and thus, it will guide our

independent review of the record. Counsel identifies three possible claims that Rhymer

could make on appeal: (1) whether the District Court’s denial of his motion to suppress

and motion to dismiss were in error; (2) whether his guilty plea was intelligent and

voluntary; and (3) whether the District Court’s determination that he did not meet the §

3553(f) requirements to be sentenced below the statutory minimum was in error. Our

independent review of the record confirms that these issues are wholly frivolous. 

This Court has held that a defendant who pleads guilty may only challenge a

District Court’s rulings on pretrial motions if he or she explicitly reserved the right to

challenge such a decision on appeal. United States v. Bentz, 21 F.3d 37, 38 (3d Cir.

1994); United States v. Huff, 873 F.2d 709, 712 (3d Cir. 1989). Here, it is undisputed

that Rhymer made no such reservation as part of his unconditional plea of guilty. 

Therefore, he may not challenge the District Court’s rulings on these pretrial motions. 

The next possible claim is that Rhymer’s guilty plea was not voluntary and

intelligent, because he had a learning disability. However, such a claim has no support

whatsoever in the record. The plea agreement was presented to Rhymer in writing, which

he signed, and he was engaged in a very frank and thorough plea colloquy with the

Magistrate Judge prior to being sentenced, including an explicit statement by the
6

Magistrate Judge, to which Rhymer agreed, that his guilty plea would mean forfeiting a

number of rights, including the right to appeal. JA 45. 

At the plea colloquy, it was revealed that Rhymer had an eleventh-grade education,

was fully literate, and had read and reviewed the documents filed in the case on his behalf

by his attorney. JA 39. He was engaged and responsive to the Magistrate Judge’s

statements and questions throughout the colloquy, and gave every possible indication that

he fully understood and comprehended the nature and consequences of his guilty plea. In

the entirety of the record, there is no objective evidence presented that Rhymer had any

sort of learning disability. The only indication of a learning disability comes from

Rhymer’s attorney, who briefly mentioned its existence, but still stated that “there’s no

question in my mind” that Rhymer fully understood the nature of the charges against him

and was competent to enter a guilty plea. JA 40. 

Rhymer’s final possible claim is that the District Court erred when it held that he

was ineligible for the 3553(f) “safety valve” provision which would have made it possible

for him to receive a sentence of less than 5 years of imprisonment. However, as part of

the plea agreement, Rhymer explicitly waived his right to appeal the District Court’s

sentencing determinations so long as they were “within the maximum provided in the

statute(s) of conviction (or the manner in which that sentence was determined).” JA 31-

32. “Waivers of appeals, if entered knowingly and voluntarily, are valid, unless they

work a miscarriage of justice.” United States v. Khattak, 273 F.3d 557, 563 (3d Cir.
7

2001). Rhymer signed the plea agreement, JA 33, and he acknowledged in open court

that he had done so and understood the consequences of signing this document. JA 38-

45. Our inquiry into an appellate waiver in an Anders case is to ensure that the District

Court confirmed that such a waiver was agreed to knowingly and voluntarily. Here, the

Court methodically went over the plea agreement and its consequences with Rhymer at

the plea colloquy, and appropriately ascertained that his guilty plea was entered

knowingly and voluntarily as provided for in Rule 11 of the Federal Rules of Criminal

Procedure. It is clear that Rhymer agreed to waive his right to appeal the sentence

imposed by the District Court. 

III.

We will grant counsel’s motion to withdraw and will affirm the judgment of the

District Court.