United States v. Fabio Gil-Polanco ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-2886
_____________
UNITED STATES OF AMERICA
v.
FABIO GIL-POLANCO
a/k/a FABIO GIL
a/k/a JOSE CUEVAS
a/k/a SANDY REYES
FABIO GIL-POLANCO,
Appellant
________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-10-cr-00522-001
District Judge: The Honorable Michael M. Baylson
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 28, 2012
Before: SMITH, and FISHER, Circuit Judges
and RAKOFF, Senior District Judge
(Filed: June 28, 2012 )
_____________________
The Honorable Jed S. Rakoff, Senior United States District Judge for the United
States District Court for the Southern District of New York, sitting by designation.
OPINION
_____________________
SMITH, Circuit Judge.
Pursuant to a written plea agreement, Fabio Gil-Polanco, a native and citizen
of the Dominican Republic, pleaded guilty to unlawful reentry after deportation in
violation of 8 U.S.C. §§ 1326(a) and (b)(2). Gil-Polanco’s plea agreement
contained a broad appellate waiver, permitting an appeal under limited
circumstances. The United States District Court for the Eastern District of
Pennsylvania sentenced Gil-Polanco to, inter alia, an above-guidelines sentence of
48 months of imprisonment. The following day, Gil-Polanco, proceeding pro se,
filed a notice of appeal.1 Thereafter, his counsel moved to withdraw pursuant to
Anders v. California, 386 U.S. 738 (1967).
In Anders, the Supreme Court stated that the “constitutional requirement of
substantial equality and fair process” means that appellate counsel must act as an
advocate for the defendant. 386 U.S. at 744. Thus, counsel’s
role as advocate requires that he support his client’s appeal to the best
of his ability. Of course, if counsel finds his case to be wholly
frivolous, after a conscientious examination of it, he should so advise
the court and request permission to withdraw. That request must,
however, be accompanied by a brief referring to anything in the
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
record that might arguably support the appeal.
Id. As we explained in United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001),
the Anders brief must demonstrate that counsel has “thoroughly examined the
record in search of appealable issues,” and it must “explain why the issues are
frivolous.” Accordingly, our inquiry is twofold: (1) whether counsel adequately
fulfilled the requirements of Anders; and (2) “whether an independent review of
the record presents any nonfrivolous issues.” Id. (citing United States v. Marvin,
211 F.3d 778, 780 (3d Cir. 2000)); see also Anders, 386 U.S. at 744 (explaining
that the court must proceed, “after a full examination of all the proceedings, to
decide whether the case is wholly frivolous”). If review fails to reveal any
nonfrivolous issues, the court “may grant counsel’s request to withdraw and
dismiss the appeal.” Anders, 386 U.S. at 744.
After considering counsel’s Anders brief, we are satisfied that counsel
fulfilled the requirements of Anders. As counsel noted, Gil-Polanco pleaded guilty
and his plea agreement contained a broad appellate waiver. As a result, Gil-
Polanco’s right to appeal is limited by not only the appellate waiver, see United
States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001), but also the general rule that a
defendant who pleads guilty may attack only the validity of his guilty plea and the
legality of his sentence. See Tollett v. Henderson, 411 U.S. 258, 267 (1973).
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Counsel contends that there is no basis for challenging the validity of Gil-
Polanco’s guilty plea as it was voluntary and knowing. Indeed, Gil-Polanco’s
informal pro se brief does not dispute the validity of his guilty plea.2
Because the sentence imposed by the District Court exceeded the sentencing
guideline range, we conclude, consistent with the exception set forth in Gil-
Polanco’s appellate waiver, that he may challenge the substantive reasonableness
of his sentence.3 We agree with counsel, however, that any such challenge lacks
merit. Although the 48 month term of imprisonment exceeds the sentencing
guideline range of 24 to 30 months, it does not exceed the statutory maximum of
20 years. The District Court properly considered the sentencing factors set forth in
18 U.S.C. § 3553(a) in fashioning the sentence. Citing the fact that Gil-Polanco’s
conviction was his third such conviction for unlawful reentry after deportation and
that the instant conviction was committed during his term of supervised release on
the second conviction for unlawful reentry, the District Court concluded that Gil-
Polanco had little regard for the laws of the United States. The District Court
further noted that Gil-Polanco had not been deterred by his previous sentences of
2
Gil-Polanco received a copy of counsel’s Anders brief and the motion to
withdraw as counsel. Consistent with Third Circuit L.A.R. 109.2(a), Gil-Polanco
filed a pro se informal brief, challenging only the reasonableness of the District
Court’s sentence of 48 months.
3
We review the District Court’s sentence for an abuse of discretion. United States
v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).
4
10 and 24 months, and it expressed doubt whether Gil-Polanco would be
personally deterred by the sentence to be imposed. Nonetheless, the District Court
believed that it needed to deter others, who might be tempted to illegally reenter
the United States. These are valid considerations under § 3553(a). See 18 U.S.C.
§§ 3553(a)(2)(A) and (B). We conclude that the District Court did not abuse its
discretion in imposing an upward variance of 48 months of imprisonment.
For the above stated reasons, we will grant counsel’s motion to withdraw
and affirm the judgment of the District Court. We certify that the issues presented
in the appeal lack legal merit and thus do not require the filing of a petition for writ
of certiorari with the Supreme Court. 3rd Cir. L.A.R. 109.2(b).
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