Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-5-2007

USA v. Peralta
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4550




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                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       No: 05-4550

                            UNITED STATES OF AMERICA

                                             v.

                                   OSCAR PERALTA,
                                          Appellant

                       Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                 (Crim. No. 05-cr-00159)
                         District Judge: Hon. Gene E.K. Pratter

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   February 26, 2007

              Before: McKEE, ALDISERT, Circuit Judges, and RESTANI,*

                                   (Filed April 5, 2007)
                                  ___________________

                                         OPINION


McKEE, Circuit Judge.

       Oscar Peralta appeals the sentence that was imposed following his guilty plea to

the charge of conspiracy to distribute in excess of one kilogram of cocaine. Because we

find that there are no non-frivolous issues present on the record, we will dismiss the




       *
               The Honorable Jane A. Restani, Chief Judge of the International Court of
Trade, sitting by designation.
appeal pursuant to Anders v. California, 

(1967).1

       Because we write primarily for the parties, we need not recite the underlying facts

or procedural history of this case. It is sufficient to note that the parties agree that the

applicable guideline range for Peralta’s offense is between thirty-seven and forty-six

months imprisonment and that defense counsel requested a downward departure of

between twenty-seven and thirty-three months. Peralta was subsequently sentenced to

thirty-three months imprisonment.

       We review Peralta’s sentence to see if it was reasonable pursuant to 18 U.S.C. §

3553(a). United States v. Booker, 

, 261 (2005). The burden of establishing

unreasonableness is on Peralta, and due deference must be afforded the district court’s

judgment. United States v. Cooper, 

, 330, 332 (3d Cir. 2006).

       Peralta’s appellate counsel has filed an Anders brief stating that he is unable to

identify any non-frivolous issue for review. Counsel who “finds [a] case to be wholly

frivolous after a conscientious examination” of the case, must so advise the court and

request permission to withdraw. Anders v. California, 

, 744 (1967).

Counsel’s request must be accompanied by a “brief referring to anything in the record

that might arguably support the appeal.” 

brief must identify any

“issue arguably supporting the appeal even though the appeal was wholly frivolous,”

Smith v. Robbins, 

, 285 (2000), “explain why the issues are frivolous,”

United States v. Marvin, 

, 781 (3d Cir. 2000), and show that counsel


       1
          The district court has jurisdiction pursuant to 18 U.S.C. § 3231 We have jurisdiction
pursuant to 28 U.S.C. § 1291.
“thoroughly scoured the record in search of appealable issues.” 

see also

United States v. Youla, 

, 300 (3d Cir. 2001).

       Counsel’s Anders brief here refers us to the portions of the record that arguably

present non-frivolous issues and counsel identifies the following issues for our

consideration: (1) Did the district court abuse its discretion by failing to grant a further

reduction of sentence from the prescribed Guideline range? (2) Is Peralta entitled to a

downward adjustment based on his minor or minimal role in the offense? Counsel

believes that any assertion of error on these issues would be frivolous, and we agree.

       Peralta’s assertion that the district court failed to consider the likelihood that he

would be further detained following his incarceration while awaiting removal from the

United States is clearly without merit. The district court specifically stated that it was

“not adverse” to taking this circumstance into consideration. App. 16. In addition, since

Peralta was sentenced to thirty-three months, a term within the range requested by

defense counsel, we can not say that it was unreasonable to refrain from imposing a lower

sentence.

       Similarly, Peralta’s allegedly minor or minimal role in the conspiracy does not

justify a downward adjustment in his sentence. We review the failure to award such a

departure for plain error since Peralta did not object at sentencing. United States v.

Cianci, 

, 111 (3d Cir. 1998). For this adjustment to be applicable, Peralta

would have to demonstrate that his “involvement, knowledge and culpability were

materially less than those of other participants.” United States v. Brown, 

,

819 (3d Cir. 2001). Peralta’s role is not rendered “minor” merely because other
participants in the scheme such as the shipper in Guatemala may have been more

culpable. See United States v. Brown, 

, 819 (3d Cir. 2001). Peralta arranged

with an undercover agent to pick up $15,000 worth of cocaine for resale. His co-

defendant had a more limited role in the conspiracy than Peralta. Accordingly, no

downward adjustment for a minor or minimal role in the offense is appropriate.

       Moreover, we note that Peralta’s counsel supplied Peralta with a copy of his

Anders brief and Peralta was given time to raise any non-frivolous argument in a pro se

brief. No such brief was filed.

       For the reasons set forth above, we will dismiss this appeal. The motion to

withdraw as counsel is hereby granted.