Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-26-2005

USA v. De La Cruz
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2534




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Recommended Citation
"USA v. De La Cruz" (2005). 2005 Decisions. Paper 1127.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1127


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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-2534


                           UNITED STATES OF AMERICA

                                           v.

                              WILFREDO DE LA CRUZ,
                                           Appellant


                      Appeal from the United States District Court
                              for the District of New Jersey
                            (D.C. Criminal No. 03-cr-00807)
                      (District Judge: Honorable John C. Lifland)


                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 10, 2005

             Before: NYGAARD, McKEE and RENDELL, Circuit Judges.

                                 (Filed May 26, 2005)


                              OPINION OF THE COURT


RENDELL, Circuit Judge.

      Wilfredo Delacruz was charged with one count of importation of more than one

kilogram of heroin, in violation of 21 U.S.C. §§ 952(a) and 960(b)(1)(A) and 18 U.S.C. §

2. He pled guilty on November 13, 2003. Subsequently, he was sentenced to a term of
eighty months’ imprisonment. Counsel has filed a brief pursuant to Anders v. California,

(1967), requesting permission to withdraw because, after a conscientious

review of the record, he is unable to find any non-frivolous issues for appeal. Delacruz

was given notice of his counsel’s intent to withdraw and has not filed a pro se brief. We

have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). For the reasons stated

below, we will grant counsel’s motion to withdraw and affirm the District Court’s

judgment of sentence.

       Evaluation of an Anders brief requires a two-fold inquiry: (1) whether counsel has

thoroughly examined the record for appealable issues and has explained why any such

issues are frivolous; and (2) whether an independent review of the record presents any

non-frivolous issues. United States v. Youla, 

, 300 (3d Cir. 2001). Where

the Anders brief appears adequate on its face, our review is limited to the portions of the

record identified in the brief, along with any issues raised by an appellant in a pro se brief.

We conclude that counsel’s Anders brief is adequate and, in the absence of a

pro se brief by the appellant, it will guide our independent review of the record.

                                              I.

       Counsel’s brief identifies three issues as potentially non-frivolous: (1) whether the

plea hearing was properly conducted; (2) whether the sentencing proceeding was properly

conducted; and (3) whether the sentence imposed by the District Court was an appropriate

application of the Sentencing Guidelines.



                                              2
       After reviewing the record, counsel has concluded that the plea hearing fully

advised Delacruz of the nature of the charges against him, his legal rights, the mandatory

minimum penalty and the maximum possible penalty for the offense, and the

consequences of his entering a guilty plea. As part of his plea agreement, Delacruz

stipulated that he knowingly and voluntarily waived “the right to file any appeal . . .

which challenges the sentencing court’s determination or imposition of the offense level,

if the total offense level determined by the court is equal to or less than 25.”

       At the sentencing proceeding, the District Court made an upward adjustment to

Delacruz’s Offense Level for the stipulated three kilograms of heroin. The Court then

capped Delacruz’s Offense Level at 30 and reduced it by two levels based on the finding

that he was a minor participant and three levels for his acceptance of responsibility. This

amounted to an Offense Level of 25, which pursuant to Delacruz’s plea agreement

triggered his waiver of appeal. Pursuant to a “substantial assistance” motion by the

United States under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, the District Court then

departed from the mandatory minimum sentence of 120 months’ imprisonment and

sentenced Delacruz to a sentence of eighty months’ imprisonment, which is within the

applicable guideline range of seventy to eighty-seven months for an Offense Level of 25.

       Accordingly, counsel has concluded that there are no non-frivolous for Delacruz

to appeal. The plea and sentencing proceedings satisfied all constitutional and procedural

requirements and Delacruz was competent and able to comprehend both proceedings, the



                                              3
government’s case against him, and the legal consequences of entering a guilty plea.

       We find that counsel for Delacruz has thoroughly considered all plausible bases for

appeal, including issues that Delacruz has waived by virtue of his guilty plea.1

                                             II.

       Our independent review of the record reveals no non-frivolous arguments that

could possibly support an appeal and we are satisfied that all the requirements of Anders

have been met. Accordingly, we will AFFIRM the judgment of the District Court and, in

a separate order, GRANT counsel’s motion to withdraw.




       1
         Delacruz has challenged his sentence under the Supreme Court’s recent decision
in United States v. Booker, __ U.S. __, 

, 

(2005).
However, Delacruz knowingly and voluntarily waived “the right to file any appeal . . .
which challenges the sentencing court’s determination or imposition of the offense level,
if the total offense level determined by the court is equal to or less than 25.” Therefore,
he cannot now attempt to take advantage of the Supreme Court’s decision in Booker. See
United States v. Lockett, No. 04-2244, 

, at *17 (3d Cir. May
5, 2005) (“We hold that where a criminal defendant has voluntarily and knowingly
entered into a plea agreement in which he or she waives the right to appeal, the defendant
is not entitled to resentencing in light of Booker.”).

                                             4