United States v. Duarte , 166 F. App'x 630 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
2-13-2006
USA v. Duarte
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4662
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 03-4662
UNITED STATES OF AMERICA
v.
CARLOS DUARTE,
a/k/a CARLOS QUARTES,
a/k/a MOSES SANCHEZ,
a/k/a MOISES SANCHEZ
Carlos Duarte,
Appellant
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 02-cr-00422-2)
District Judge: Honorable Herbert J. Hutton
_______________
Submitted Under Third Circuit LAR 34.1(a)
on November 7, 2005
BEFORE: ROTH, FUENTES and GARTH, Circuit Judges,
(Opinion Filed February 13, 2006)
OPINION
ROTH, Circuit Judge:
Carlos Duarte pled guilty to conspiracy to distribute cocaine and more than 50
grams of cocaine base (crack), in violation of 21 U.S.C. § 846 (Count One); distribution
and aiding and abetting the distribution of approximately 59.67 grams of a mixture or
substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C) and 18 U.S.C. § 2 (Count Two); and distribution and aiding
and abetting the distribution of more than 50 grams of cocaine base (crack), in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii) and 18 U.S.C. § 2 (Counts Three, Four,
and Five). Under the United States Sentencing Guidelines (Guidelines), Duarte’s total
offense level of 33, with a criminal history category of III, produced a sentencing range of
168 to 210 months. Pursuant to the Guidelines, the District Court imposed a 168-month
prison term, five years of supervised release, and a $500 special assessment.
Duarte’s counsel has filed an appeal pursuant to Anders v. California, 386 U.S.
738 (1967), citing lack of non-frivolous appealable issues. He also filed a motion to
withdraw. Duarte was notified of his right to file a pro se brief and he did so. For the
reasons stated below, we will deny defense counsel’s motion to withdraw, affirm Duarte’s
judgment of conviction, vacate his judgment of sentence, and remand for resentencing
consistent with United States v. Booker, 125 S.Ct. 738 (2005).
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I.
The District Court had jurisdiction under 18 U.S.C. §3231. We have jurisdiction
in accordance with 18 U.S.C. § 3742 and 28 U.S.C. § 1291. Moreover, in his plea
agreement, Duarte specifically preserved for appeal issues of sentence legality and
voluntariness of his guilty plea.1
II.
In this appeal, pursuant to Anders v. California, 386 U.S. 738 (1967), defense
counsel advises that there are no non-frivolous issues that can be raised on Duarte’s
behalf. Under the mandate established in Anders, we have conducted an independent
examination of the record before us in order to determine whether it presents any non-
frivolous issue. We conclude that it does not.
III.
In his pro se informal brief, Duarte contends that his guilty plea was not made
intelligently and voluntarily. He claims that he was given ineffective assistance by
counsel who “was almost forcing [him] to plead guilty,” and that, during the colloquy,
Duarte did not understand the questions asked of him. The record, however, does not
support Duarte’s arguments.
“[A] guilty plea is more than an admission of conduct; it is a conviction.” Boykin
1
The appellate waiver provision stated: “I understand that if I plead guilty, the
only right of appeal I may have would be to challenge the jurisdiction of the court, the
voluntariness of my guilty plea, and the legality of any sentence imposed.” Guilty Plea
Agreement, Acknowledgment of Rights ¶ 6.
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v. Alabama, 396 U.S. 238, 242 (1969). A district judge who accepts a guilty plea must
engage the defendant in an on-record colloquy designed to demonstrate that the defendant
is fully aware of the important federal trial rights waived by pleading guilty and that the
guilty plea is made intelligently and voluntarily. Id. at 242-43; F ED. R. C RIM. P. 11.
Reversible error occurs when the record does not disclose a voluntary and intelligent
guilty plea. Id. at 244. The burden is on the defendant to establish by a preponderance of
evidence that his guilty plea was not voluntary and intelligent. See United States v.
Carter, 619 F.2d 293 (3d Cir. 1980); United States v. Stewart, 977 F.2d, 81, 85 (3d Cir.
1992).
Duarte has failed to establish by a preponderance of evidence that his guilty plea
was not made voluntarily and intelligently. Duarte has not put forth any evidence in
support of this claim. Our examination of the record indicates that Duarte’s guilty plea
was made voluntarily and intelligently. During the guilty plea colloquy, the District
Judge, with the assistance of an interpreter and Duarte’s counsel, determined that Duarte
understood the nature of the charges, the potential prison sentence, and that he was
satisfied with his counsel’s advice and representation. The judge also explained to Duarte
his right to plead not guilty, his right to counsel, his trial rights which he was giving up by
pleading guilty, and the limitations on his appellate rights in light of his guilty plea. The
District Court determined from Duarte’s own words, and from the prosecutor, that there
was a factual basis for the guilty plea. Therefore, reversible error does not exist, and
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Duarte’s guilty plea was valid.
In his informal brief, Duarte also argues that his sentence was too long, that the
district court erroneously failed to make certain findings of fact, and that ineffective
assistance of counsel led to Duarte’s failure to assert certain arguments. In particular,
Duarte argues that the District Court failed to ensure that (1) alcoholism was not a fact
that compelled him to commit the crimes, (2) his lack of education and job skills
contributed to his committing the crimes, and (3) he was not tricked into a conspiracy to
distribute drugs because of his being a foreigner with little or no ability to speak English.
Duarte also argues that these three issues were not advocated on his behalf by counsel.
We will not address Duarte’s assertions of ineffective assistance of counsel on this
direct appeal. These claims are better considered on collateral review. See United States
v. Thornton, 327 F.3d 268 (3d Cir. 2003).
Although Duarte has not expressly raised a Booker challenge in this appeal, we
will nonetheless proceed as though that challenge was made.2 United States v. Urban,
505 F.3d 754, 783 n.12 (3d Cir. 2005) (“We will vacate the sentences of Appellants . . .
even though they have not expressly indicated that they wish to challenge their sentences
under Booker.”). A defendant’s Booker claim, asserted for the first time on appeal, is
subject to plain error review. United States v. Davis, 407 F.3d 162, 164-65 (3d Cir.
2
We will treat Duarte’s letter to the Clerk’s Office requesting an extension to file a
Booker brief as a response to the Clerk’s order permitting a Booker brief to be submitted,
considering that defense counsel failed to respond to the Clerk’s order.
5
2005). Where, as here, the district court imposed sentence and treated the “Guidelines as
mandatory rather than advisory,” the defendant’s claim survives scrutiny under plain error
review. Davis, 407 F.3d at 164. In these circumstances, “we will decide claims of error
related to the conviction, vacate the sentence, and remand for consideration of the
appropriate sentence by the District Court in the first instance.” Id. at 166. Therefore, we
will vacate Duarte’s sentence and remand for resentencing. Because this case is being
remanded for resentencing, we will deny counsel’s motion to withdraw.
IV.
For the reasons stated, we will deny defense counsel’s motion to withdraw, affirm
the judgment of conviction, vacate the judgement of sentence, and remand this case for
resentencing in accordance with Booker.
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