Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-16-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2617




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Recommended Citation
"USA v. Romeu" (2004). 2004 Decisions. Paper 69.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/69


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                                                                   NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 03-2617
                                      ____________

                             UNITED STATES OF AMERICA

                                               v.

                                     FELIX ROMEU,

                                            Appellant
                                       ____________

                        Appeal from the United States District Court
                         For the Eastern District of Pennsylvania
                                  D.C. No.: 02-cr-00646-03
                        District Judge: Honorable Harvey Bartle, III
                                       ____________

             Submitted Under Third Circuit LAR 34.1(a) December 14, 2004

                Before: NYGAARD, ROSENN, and BECKER, Circuit Judges

                                (Filed December 16, 2004)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

ROSENN, Circuit Judge.

       A federal grand jury in the Eastern District of Pennsylvania returned an

indictment of Felix Romeu, the appellant, and three co-defendants charging Romeu with

one count of conspiracy to distribute more than one hundred grams of heroin in violation

of 21 U.S.C. § 846. It also indicted him on four counts of distribution of heroin near a
school in violation of 21 U.S.C. § 860, five counts of distribution of heroin in violation of

21 U.S.C. § 841(a)(1), one count of possession with intent to distribute more than one

hundred grams of heroin in violation of 21 U.S.C. § 841(a)(1), one count of possession

with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) and aiding and

abetting in violation of 18 U.S.C. § 2.

       On January 21, 2003, Romeu pled guilty to all charges pursuant to a written plea

agreement with the Government. The District Court imposed a sentence of 92 months

imprisonment, a term of supervised release of six years, and a special assessment of

$1200. Romeu timely appealed.

       When Romeu pled guilty to all charges pursuant to a written plea agreement, the

agreement stipulated that the heroin conspiracy involved 227 grams of heroin resulting in

a base offense level of 26. The agreement also stipulated that Romeu was entitled to a

three-level downward adjustment for acceptance of responsibility under Sentencing

Guideline 3E1.1(a) and (b). In exchange for the undertakings made by the Government in

the plea agreement, Romeu voluntarily and expressly waived all rights of appeal or to

collaterally attack his conviction, sentence, or any other matter relating to the prosecution

under any provision of the law except if: (1) the Government appealed his sentence, (2)

the sentence exceeded the statutory maximum, or (3) the District Court erroneously

departed upward from the applicable sentencing guideline range. The District Court

questioned Romeu about the appellate waiver and he acknowledged that he understood



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what he was doing.

       As required by Anders v. California, 

(1967), counsel for Romeu

points out that there are no non-frivolous claims. He also submitted a copy of his brief to

the defendant, who filed his own pro se brief. The defendant contends that Counts III, V,

VII, IX, XII, XIII, and XIV are all § 841(a) counts which are lesser included offenses of §

860. Thus, he contends that they duplicate Counts II, IV, VI, and VIII.

       The Government agrees with counsel that there are no non-frivolous claims, other

than Romeu’s claim, raised in his pro se brief, pertaining to Counts III, V, VII, and IX.

Thus, despite the waiver of appeal, the Government concedes that Romeu’s convictions

and sentences on Counts III, V, VII, and IX (distribution of heroin in violation of 21

U.S.C. § 841(a)(1)) should be vacated because they are lesser included offenses of Counts

II, IV, VI, and VIII (distribution of heroin near a school in violation of 21 U.S.C.

§ 860(a)). However, we agree with the Government that vacating those sentences has no

effect on the sentences or convictions on the other counts or on Romeu’s overall sentence.

The effect of vacating the convictions and sentences on those counts will be to reduce

Romeu’s special assessment by $400. Accordingly, after reviewing the record and briefs,

this case will be remanded to the District Court to amend its judgment and commitment

order by reducing the special assessment from $1200 to $800.

       Romeu’s challenge to his sentence on Counts XII, XIII, and XIV is dismissed for

lack of jurisdiction because of his appellate waiver and the Government sought to enforce



                                              3
the waiver with respect to that issue. Furthermore, the Government argues that the

challenge to the sentence on Counts XII, XIII, and XIV are without merit. We agree.

       Accordingly, the judgment of conviction and sentence of the District Court is

affirmed in all respects except as to Counts III, V, VII, and IX which are herewith

vacated.




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