United States v. Daniel Ramos-Torres , 507 F. App'x 129 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-4614
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UNITED STATES OF AMERICA
v.
DANIEL R. RAMOS-TORRES
a/k/a MONO a/k/a DANNY
Daniel R. Ramos-Torres,
Appellant
___________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 2-08-cr-00495-001)
District Judge: Honorable Susan D. Wigenton
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 28, 2012
Before: McKEE, Chief Judge, JORDAN, and VANASKIE, Circuit Judges
(Filed: December 4, 2012)
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OPINION
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VANASKIE, Circuit Judge.
Appellant Daniel Ramos-Torres pled guilty to one count of conspiracy to import
heroin in violation of 21 U.S.C. § 963. His appeal is before us on a brief submitted by his
attorney pursuant to Anders v. California, 386 U.S. 738 (1967). Counsel for Ramos-
Torres asserts that there are no nonfrivolous issues on appeal. Ramos-Torres, although
informed of his right to file a brief on his own behalf, has not done so. Having reviewed
the record, we agree with Ramos-Torres’ counsel that there are no non-frivolous issues in
this matter. Accordingly, we will affirm the District Court’s judgment and grant
counsel’s motion for leave to withdraw.
I.
We write primarily for the parties, who are familiar with the facts and procedural
history of this case. Accordingly, we set forth only those facts necessary to our analysis.
Ramos-Torres was charged with conspiracy to import heroin and conspiracy to
distribute and possess with intent to distribute heroin. Ramos-Torres pled guilty,
pursuant to a written plea agreement, to count one of the two count Indictment, charging
conspiracy to import heroin. In the plea agreement, Ramos-Torres stipulated that the
conspiracy involved at least 10 kilograms, but less than 30 kilograms, of heroin. He also
admitted that he was a supervisor or manager within the conspiracy, thus warranting a
two-level increase in his offense level. The guidelines offense level for the amount of
heroin attributable to Ramos-Torres was 36. Accordingly, his total offense level was 38,
before any offsets. Ramos-Torres received a three-level reduction for acceptance of
responsibility, resulting in a final offense level of 35. The plea agreement acknowledged
that the appropriate offense level was 35. At his plea hearing, Ramos-Torres
acknowledged that he understood he was waiving his right to appeal any sentence
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imposed by the Court that fell within or below the agreed upon Guidelines offense level
of 35. 1 The plea agreement waiver reads in relevant part:
Daniel Ramos-Torres knows that he has and, except as noted
below in this paragraph, voluntarily waives, the right to file
any appeal, any collateral attack, or any other writ or motion,
including but not limited to an appeal under 18 U.S.C. § 3742or a motion under 28 U.S.C. § 2255, which challenges the
sentence imposed by the sentencing court if that sentence falls
within or below the Guidelines range that results from a total
Guidelines offense level of 35.... The provisions of this
paragraph are binding on the parties even if the Court
employs a Guidelines analysis different from that stipulated
to herein. Furthermore, if the sentencing court accepts a
stipulation, both parties waive the right to file an appeal,
collateral attack, writ, or motion claiming that the sentencing
court erred in doing so.
(SA 7, ¶ 9).
At sentencing, the Court granted the Government’s motion pursuant to U.S.S.G. §
5K1.1, and departed downward from a base offense level of 35 to 32. The sentencing
guideline range for offense level 32 and criminal history score I was 121 to 151 months.
On December 16, 2011, Ramos-Torres was sentenced to 121 months’ imprisonment.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have appellate
jurisdiction under 28 U.S.C. § 1291.
A.
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With a criminal history category of I, Ramos-Torres’ advisory guidelines range
was 168 to 210 months of incarceration. The crime carried a mandatory minimum prison
term of ten years.
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Pursuant to Anders, counsel for a defendant may seek to withdraw if, after
reviewing the District Court record, he or she is “persuaded that the appeal presents no
issue of even arguable merit.” See 3d Cir. L.A.R. 109.2(a). Specifically, counsel must
“(1) . . . satisfy the court that counsel has thoroughly examined the record in search of
appealable issues, and (2) . . . explain why the issues are frivolous.” United States v.
Youla, 241 F.3d 296, 300 (3d Cir. 2001) (citations omitted). Although not every
conceivable claim need be raised and rejected, counsel “must meet the ‘conscientious
examination’ standard set forth in Anders.” Id. When presented with an Anders brief, we
engage in a two-step analysis to consider: “(1) whether counsel adequately fulfilled
[Third Circuit Local Appellate Rule 109.2(a)’s] requirements; and (2) whether an
independent review of the record presents any nonfrivolous issues.” Id. If we find that
“the Anders brief initially appears adequate on its face,” the second step of the inquiry
will be “confine[d] . . . to those portions of the record identified by . . . [the] Anders
brief.” Id. at 301. If this Court agrees with counsel’s assessment of the appealable
issues, we “will grant trial counsel’s Anders motion and dispose of the appeal without
appointing new counsel.” Id. at 300. When reviewing an Anders motion, we exercise
plenary review. See Simon v. Gov’t of Virgin Islands, 679 F.3d 109, 114 (3d Cir. 2012).
B.
Ramos-Torres’ counsel identifies one potentially appealable issue: whether the
District Court erred in applying the two-level enhancement for defendant’s role as a
supervisor or manager in the conspiracy. This contention flies in the face of Ramos-
Torres’ stipulation in the plea agreement that he did occupy such a position in the
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conspiracy, and, in any event, is barred by the appeal waiver set forth in the plea
agreement.
This Court “will not review the District Court’s application of the sentencing
enhancements, or otherwise review [a] sentence for reasonableness, if [the defendant]
validly waived his right to that review.” United States v. Corso, 549 F.3d 921, 928 (3d
Cir. 2008); United States v. Khattak, 273 F.3d 557, 562 (2001). The appellate waiver in
this case contained substantially the same language as the waiver upheld in United States
v. Gwinnett, 483 F.3d 200, 204 (2007) (upholding waiver in plea agreement that stated
that the Government and defendant “‘waive certain rights to file an appeal, collateral
attack, and writ or motion after sentencing, including but not limited to an appeal under
18 U.S.C. § 3742’”). Ramos-Torres’ waiver forfeited the right to file any appeal
challenging the sentence imposed by the District Court so long as the sentence fell within
or below the Guidelines range that resulted from a total guidelines offense level of 35.
His sentence did in fact fall below the sentencing guideline range for a base offense level
of 35. Therefore, his appellate waiver bars his present appeal unless it is unenforceable.
Appellate waivers will be enforced unless the Defendant can show that either it
was not “entered into knowingly or voluntarily,” or that it would “work a miscarriage of
justice.” Khattak, 273 F.3d at 563. In the present case, Ramos-Torres signed the plea
agreement, consulted with counsel, and engaged in a colloquy with the District Court
regarding the rights he was waiving. Ramos-Torres agreed with the base offense level,
agreed with the stipulated amount of heroin involved in the case, and agreed that he was a
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supervisor or manager in the conspiracy. There is no evidence that would suggest that
Ramos-Torres did not knowingly and voluntarily enter into the plea agreement
Our review of the record also fails to disclose any nonfrivolous ground, not
covered by the waiver, to support a suggestion that manifest injustice would result by
enforcing the appellate waiver here. Because Ramos-Torres entered into the plea
agreement knowingly and voluntarily, his appeal is barred by the appellate waiver. Thus,
as defense counsel asserts, there are no non-frivolous issues that could be presented here.
III.
For the foregoing reasons, we will affirm the judgment of the District Court and
grant defense counsel’s motion to withdraw.
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