United States v. Juan Ledesma-Nolasco , 596 F. App'x 147 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 14-1186
_______________
UNITED STATES OF AMERICA,
v.
JUAN LEDESMA-NOLASCO,
Appellant
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 2-12-cr-00614-001)
District Judge: Honorable Legrome D. Davis
_______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 8, 2014
Before: FUENTES, FISHER, and KRAUSE, Circuit Judges
(Filed: December 22, 2014)
_______________
OPINION
____________

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge:
Juan Ledesma-Nolasco pled guilty to drug charges arising from his transportation
of large quantities of heroin and methamphetamine across the country in his tractor-
trailer. After being sentenced to 160 months in prison, he filed a notice of appeal. His
counsel certifies that all possible grounds for appeal are frivolous and seeks to withdraw
as counsel pursuant to Anders v. California, 386 U.S. 738 (1967). Ledesma-Nolasco has
filed a pro se brief challenging his conviction and sentence.
For the following reasons, we affirm the District Court’s judgment of conviction
and sentence and grant counsel’s motion to withdraw.1
I.
Acting on intelligence from a confidential informant, law enforcement stopped and
searched Ledesma-Nolasco’s tractor-trailer, discovering nearly 15 kilograms of heroin
and over 10 kilograms of methamphetamine. Ledesma-Nolasco entered an open plea of
guilty to one count of conspiracy to possess heroin and methamphetamine with intent to
distribute and one count of possession with intent to distribute. His post-arrest interview
revealed that he had transported drugs on previous occasions and was responsible for
transporting a total of 16.98 kilograms of heroin, 19.01 kilograms of methamphetamine,
and 8 kilograms of cocaine.
At sentencing, the District Court rejected Ledesma-Nolasco’s argument that he
1
We note, however, that a recent amendment to the Sentencing Guidelines may provide
Ledesma-Nolasco with a basis to file a motion with the District Court seeking a reduction
in his sentence. See discussion infra Part III.
2
was a minor participant in the criminal activity within the meaning of U.S.S.G. § 3B1.2. It
determined that his total offense level was 34 and that his criminal history category was I,
yielding a Guidelines range of 151 to 188 months in prison. After considering the factors
outlined in 18 U.S.C. § 3553(a), the Court sentenced Ledesma-Nolasco to 160 months of
incarceration.
II.
When counsel submits an Anders brief, “[w]e must determine: 1) whether counsel
adequately fulfilled the requirements of Third Circuit Local Appellate Rule 109.2(a), and
2) whether an independent review of the record presents any nonfrivolous issues.” Simon
v. Gov’t of the Virgin Islands, 679 F.3d 109, 114 (3d Cir. 2012).2
The Anders brief adequately explains that all possible issues for appeal are
frivolous. The District Court had jurisdiction; the plea colloquy was thorough; Ledesma-
Nolasco’s waiver of rights was knowing, voluntary, and intelligent; and the sentence
imposed was procedurally and substantively reasonable. Our independent review of the
record reveals nothing to the contrary.
In his pro se brief, Ledesma-Nolasco asserts three grounds for appeal, none of
which has arguable merit. First, he claims that the District Court erred in its findings with
respect to his motion to suppress. But the District Court made no such findings; Ledesma-
Nolasco pled guilty the day before the suppression hearing. At his plea hearing, Ledesma-
2
The District Court had subject-matter jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction to review the District Court’s judgment of conviction and sentence pursuant
to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
3
Nolasco stated that he understood that he was giving up his right to seek the suppression
of evidence. And at sentencing, Ledesma-Nolasco’s counsel indicated that he could not
have pursued the suppression motion in good faith.
Ledesma-Nolasco’s second contention is that he did not understand the factual
basis provided by the Government in support of his convictions. This argument is belied
by the record. After the Government recited the evidence it would introduce at trial, the
Court asked Ledesma-Nolasco whether he had any “corrections or amendments to the
facts.” Ledesma-Nolasco responded, “No, everything is fine.” (App. 52-53.)
Ledesma-Nolasco’s final argument is that his sentence was procedurally and
substantively unreasonable and that the District Court erred in failing to award a full
three-point reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(b).
The District Court properly declined to award the third point because “a motion from the
government is normally a necessary predicate to the granting of a downward adjustment
under § 3E1.1(b).” United States v. Drennon, 516 F.3d 160, 162 (3d Cir. 2008). While
there are constitutional constraints on the Government’s discretion, there is no indication
that its refusal to make such a motion here was impermissible. See id. at 162-63.
Nor was the sentence procedurally or substantively unreasonable for any other
reason. The District Court had broad discretion in deciding whether to apply a mitigating-
role adjustment, and its determination that the adjustment was unwarranted was not
clearly erroneous. See United States v. Self, 681 F.3d 190, 200-01 (3d Cir. 2012). The
calculated Guidelines range was therefore permissible, and the District Court elected to
4
impose a sentence within that range (and below the statutory maximum) only after
considering all of the relevant factors.
Accordingly, we affirm the judgment of conviction and sentence.
III.
One additional point deserves mention. The drug quantity table in § 2D1.1(c) of
the Guidelines was recently amended to lower the sentencing ranges applicable to drug
offenders. Had Ledesma-Nolasco been sentenced according to the new drug quantity
table, his base offense level would have been lower by two levels.
The amendment went into effect on November 1, 2014, nine months after
Ledesma-Nolasco was sentenced. See United States Sentencing Commission Notice (May
6, 2014), 79 Fed. Reg. 25996-02. The District Court properly applied the Guidelines in
effect at the time of sentencing, and we may not apply the amendment retroactively on
appeal. See U.S.S.G. § 1B1.11; United States v. Wise, 515 F.3d 207, 220 (3d Cir. 2008).
Ledesma-Nolasco may, however, file a motion with the District Court seeking a
reduction in his term of imprisonment. See 18 U.S.C. § 3582(c)(2); Wise, 515 F.3d at 220-
21. And the District Court may reduce his sentence, provided that the effective date of the
order is November 1, 2015, or later. See U.S.S.G. § 1B1.10(a), (d), (e)(1), cmt. 6.
IV.
For the foregoing reasons, we affirm the District Court’s judgment of conviction
and sentence and grant counsel’s motion to withdraw.
5