Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-6-2002

USA v. Simon
Precedential or Non-Precedential:

Docket 0-2271




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"USA v. Simon" (2002). 2002 Decisions. Paper 153.
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NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                            No. 00-2271


                      UNITED STATES OF AMERICA

                                 v.

                      ELLIOT SIMON, a/k/a June

                           Elliot Simon,
                                    Appellant



         On Appeal from the United States District Court
                  for the District of New Jersey
                   (D.C. Crim. No. 99-cr-00398)
              District Judge: Hon. Anne E. Thompson


            Submitted Under Third Circuit LAR 34.1(a)
                         February 4, 2002

          Before:   SLOVITER and AMBRO, Circuit Judges, and POLLAK,
District Judge

                      (Filed:   March 6, 2002)



                        OPINION OF THE COURT

SLOVITER, Circuit Judge.
                                I.
     This appeal by Elliot Simon from his conviction and sentence is
before us on a
brief filed by Simon's counsel pursuant to Anders v. United States, 

(1967),
in which counsel has stated that there is no non-frivolous challenge to
the plea agreement
and/or sentence, and thus there was no matter that was arguably
appealable. Simon was
advised that he had the opportunity to file a pro se brief and he has done
so, filing both a
pro se brief and a reply brief. We have carefully reviewed all of the
briefs filed in this
case, and find no reason to reverse the judgment of the District Court.
Because we write
solely for the parties, we need not set forth a detailed recitation of the
background for this
appeal and will limit our discussion to resolution of the issues
presented.
                               II.
     Appellant Simon was originally charged in a nine-count superseding
indictment
and forfeiture allegation with one count of conspiracy to distribute, and
to possess with
intent to distribute, crack cocaine in violation of 21 U.S.C.   846,
contrary to 21 U.S.C.
841(a)(1); one count of distribution of cocaine in violation of 21 U.S.C.
  841(a)(1) and
18 U.S.C.   2; and seven counts of distribution of crack cocaine in
violation of 21 U.S.C.
  841(a)(1) and 18 U.S.C.   2. The government filed a superseding
enhanced penalty
information notifying Simon that he was subject to enhanced statutory
penalties in regard
to Counts 1 through 9.
     Some six or seven months later, Simon entered a guilty plea to Count
1 charging
that he conspired with others to distribute and to possess with intent to
distribute more
than fifty grams of crack cocaine. That plea was entered pursuant to a
written
cooperating plea agreement. Simon stipulated, inter alia, that he had
been convicted in
New Jersey of the felony of possession with intent to distribute a
controlled substance,
that he had also been convicted in New Jersey of aggravated assault, also
a felony, and
that the offense to which he pled in this case involved the distribution
of more than fifty
grams of crack cocaine. Simon also waived his right to appeal or
otherwise challenge his
offense level, except that he reserved his right to appeal a finding that
he qualified as a
career offender under U.S.S.G.   4B1.1. The presentence report (PSR)
found that Simon
qualified as a career offender within the meaning of U.S.S.G.   4B1.1.
     In fixing the offense level in the PSR, the probation office
calculated a total
offense level of 34, which represented an offense level of 37 less 3
levels for acceptance
of responsibility. The probation office also calculated Simon's criminal
history category
at VI in light of his numerous prior convictions, which resulted in an
applicable
sentencing guideline range of 262 to 327 months imprisonment.
Furthermore, it
calculated that Simon was subject to a statutory mandatory minimum term of
imprisonment on Count 1 of 20 years and a statutory maximum term of life
imprisonment.
     Pursuant to the plea agreement, the government filed a motion seeking
a
downward departure under U.S.S.G.   5K1.1 based on Simon's substantial
assistance.
Although the parties had stipulated that Simon would not seek a downward
departure,
defense counsel filed a sentencing memorandum in which he did seek such a
downward
departure based on the claim that the career offender designation
overstated the
seriousness of Simon's criminal history. The District Court declined to
grant the
departure, finding from Simon's criminal history that he more than
qualified for career
offender designation. The District Court took into account the
government's motion for a
downward departure from both the guidelines range and the statutory
mandatory
minimum and sentenced Simon to 168 months imprisonment, ten years
supervised
release, and ordered that he pay a $1,000 fine and a $100 special
assessment. This
represented a substantial downward departure. Simon filed a timely
appeal. We have
jurisdiction pursuant to 28 U.S.C.   1291.
                               III.
     In light of the Anders brief, the contested issues before us are
those raised by
Simon in his pro se brief. He argues first that his guilty plea was
involuntary because he
was informed of an erroneous statutory maximum and minimum penalty
applicable to the
drug conspiracy charged in the indictment. Simon relies on the Supreme
Court's decision
in Apprendi v. New Jersey, 

(2000), where the Court held that
"[o]ther than
the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved
beyond a
reasonable doubt." 

This court held in United States v.
Williams, 

(3d Cir. 2000), that Apprendi provides no basis for relief to a defendant
who receives a
sentence below the otherwise applicable statutory maximum, even if the
findings exposed
the defendant to a higher statutory maximum. 

Even
assuming Apprendi
would apply in a guilty plea case, under the circumstances of this case,
in which Simon's
sentence was considerably below the applicable statutory maximum, Apprendi
is
inapplicable.
     Nor can Simon prevail on his argument that his guilty plea was
involuntary. The
District Court thoroughly explained to Simon that he faced a statutory
mandatory
minimum of 20 years imprisonment and a statutory maximum of life
imprisonment.
Simon appears to argue that his statutory maximum was thirty years, not
life, and
therefore he was misinformed by the District Court, which led to his
guilty plea being
involuntary. However, the District Court did not err. Under 21 U.S.C.
841(b)(1)(A)(iii), a defendant convicted of violating section 841(a) with
fifty grams or
more of a mixture containing cocaine base, i.e., crack cocaine, is subject
to a life
sentence. Simon pled guilty to violating section 841(a), the indictment
charged that he
distributed in excess of fifty grams, and he stipulated to that drug
quantity both in the plea
agreement and admitted it before the District Court. Therefore, his
argument that the plea
was involuntary is frivolous.
     The second argument made in Simon's pro se brief is that the District
Court erred
in the application of the enhanced penalty provision of 21 U.S.C.   851.
He argues that
one of his prior convictions is more consistent with simple possession and
use of drugs
and therefore is not an appropriate basis to support the enhanced penalty
provision.
     However, as the government notes, Simon stipulated that he was
convicted in New
Jersey on June 15, 1990 of the felony of possession with intent to
distribute a controlled
substance. In fact, he was convicted of three offenses, and he challenges
only one of the
three. Moreover, as the government points out, Simon's sentence of only
fourteen years
imprisonment did not exceed the twenty-year statutory maximum sentence
that would
have been applicable even if the enhanced penalty information were not
filed. There was
no error in applying the enhanced penalty to Simon.
                               IV.
     For the reasons set forth above, we will affirm the judgment of
conviction and
sentence, and we will grant counsel's motion to withdraw.
________________________

TO THE CLERK:

          Please file the foregoing opinion.
/s/ Delores K. Sloviter
     Circuit Judge