United States v. Anibal Rodriguez ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-2850
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UNITED STATES OF AMERICA
v.
ANIBAL RODRIGUEZ, a/k/a Lou,
Appellant
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Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-17-cr-00239-001)
District Judge: Hon. Robert D. Mariani
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Submitted Under Third Circuit L.A.R. 34.1(a)
October 7, 2021
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Before: SHWARTZ, NYGAARD, and FISHER, Circuit Judges.
(Filed: October 8, 2021)
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OPINION*
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*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
SHWARTZ, Circuit Judge.
Anibal “Lou” Rodriguez pleaded guilty to one count of conspiracy to distribute
and possess with intent to distribute more than 500 grams of methamphetamine and was
sentenced to 240 months’ imprisonment. Rodriguez appeals. His appellate counsel
contends that his appeal presents no nonfrivolous issues and moves to withdraw under
Anders v. California, 386 U.S. 738 (1967). We agree and will grant the motion and
affirm.
I
Rodriguez led a violent criminal conspiracy that distributed methamphetamine in
and around Schuylkill County, Pennsylvania. In one instance, Rodriguez and his co-
conspirators held a woman captive and took turns tasing her because she stole $900 from
the conspiracy. Law enforcement later found four firearms at the location where this
torture took place.
A grand jury returned an eight-count indictment against Rodriguez and three of his
co-conspirators. The indictment charged Rodriguez with (1) one count of conspiracy to
distribute and possess with intent to distribute more than 500 grams of methamphetamine
in violation of 21 U.S.C. § 846; (2) one count of distribution and possession with intent to
distribute more than 50 grams of methamphetamine in violation of 21 U.S.C. §
841(b)(1)(B); and (3) four counts of aiding and abetting the distribution and possession
with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(b)(1) and 18
2
U.S.C. § 2. Pursuant to a plea agreement, Rodriguez pleaded guilty to the conspiracy
count and the Government agreed to dismiss the remaining counts.
The Probation Office then prepared a Presentence Investigation Report (“PSR”),
which recommended a United States Sentencing Guidelines range of 360 months to life
imprisonment, based on a total offense level of thirty-nine and a criminal history category
of IV.
At sentencing, Rodriguez’s counsel stated that, although Rodriguez had objections
to the PSR,1 “they were not viable objections . . . so [he] could not in good conscience
file [them].” App. 39. The District Court nonetheless reduced the PSR’s recommended
Guidelines calculation by two levels because the Government could not prove that
Rodriguez maintained a premises for the purpose of distributing methamphetamine.
Consequently, Rodriguez’s total offense level dropped to thirty-seven and his new
Guidelines imprisonment range was 292 to 365 months. The Court then granted a
downward departure, which resulted in a sentencing range of 235 to 292 months.
Thereafter, the Court analyzed the sentencing factors under 18 U.S.C. § 3553(a) and
imposed a sentence of 240 months’ imprisonment, five years’ supervised release, and a
special assessment of $100.
Rodriguez’s counsel appealed on Rodriguez’s behalf and moved to withdraw,
asserting that there are no nonfrivolous grounds for appeal.
1
The record does not reveal Rodriguez’s specific objections.
3
II2
A
“Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines the Supreme
Court promulgated in Anders to [ensure] that indigent clients receive adequate and fair
representation.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). This rule
allows defense counsel to file a motion to withdraw and an accompanying brief pursuant
to Anders when counsel has reviewed the record and concluded that “the appeal presents
no issue of even arguable merit.” Third Cir. L.A.R. 109.2(a). When counsel submits an
Anders brief, we must determine: “(1) whether counsel adequately fulfilled the rule’s
requirements; and (2) whether an independent review of the record presents any
nonfrivolous issues.” Youla, 241 F.3d at 300 (citing United States v. Marvin, 211 F.3d
778, 780 (3d Cir. 2000)). An issue is frivolous if it “lacks any basis in law or fact.”
McCoy v. Ct. of Appeals of Wis., Dist. 1, 486 U.S. 429, 438 n.10 (1988).
To determine whether counsel has fulfilled Rule 109.2(a)’s requirements, we
examine the brief to see if it: (1) shows that counsel has thoroughly examined the record
in search of appealable issues, identifying those that arguably support the appeal even if
wholly frivolous, Smith v. Robbins, 528 U.S. 259, 285 (2000); and (2) explains why
2
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We
exercise plenary review to determine whether there are any nonfrivolous issues for
appeal. Penson v. Ohio, 488 U.S. 75, 80 (1988). Because Rodriguez did not object to
any aspect of his conviction or sentence, we review for plain error. United States v.
Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc).
4
those issues are frivolous, Marvin, 211 F.3d at 780-81. If the Anders brief meets these
requirements, it guides our review, and we need not scour the record. See Youla, 241
F.3d at 301.
Counsel’s Anders brief satisfies both elements, and an independent review of the
record reveals no nonfrivolous issues for appeal. First, the brief demonstrates a thorough
examination of the record and identifies three potentially nonfrivolous issues: (1) the
District Court’s jurisdiction, (2) the validity of Rodriguez’s guilty plea, and (3) the
reasonableness of Rodriguez’s sentence. Second, the brief explains why the District
Court’s jurisdiction was proper and why any challenge to the plea or sentence would be
frivolous under the governing law. Counsel’s Anders brief is therefore sufficient, so we
will review the issues it identified.
B
First, as Rodriguez’s counsel explains, the District Court had jurisdiction to enter
the judgment of conviction and sentence. United States district courts have jurisdiction
over offenses against the laws of the United States. 18 U.S.C. § 3231. Rodriguez was
convicted of conspiracy to distribute and possess with intent to distribute more than 500
grams of methamphetamine in violation of 21 U.S.C. § 846, which is a federal offense.
5
Accordingly, there is no issue of arguable merit concerning the District Court’s
jurisdiction.3
Second, Rodriguez’s guilty plea was valid under the Constitution and Federal Rule
of Criminal Procedure 11.4 During Rodriguez’s plea hearing, the District Court placed
Rodriguez under oath, questioned him in open court, explained that false answers could
subject him to prosecution for perjury, and confirmed his competence. The Court also
reviewed his constitutional rights, including (a) his right to plead not guilty and proceed
to trial with the assistance of counsel who could confront, cross examine, and subpoena
3
Rodriguez’s counsel also correctly notes that venue was proper in the United
States District Court for the Middle District of Pennsylvania pursuant to 18 U.S.C.
§ 3237(a) because the acts in furtherance of the conspiracy occurred in Schuylkill County
within the Middle District of Pennsylvania. See United States v. Auernheimer, 748 F.3d
525, 533 (3d Cir. 2014) (“Venue would be proper in any district where the [federal law]
violation occurred, or wherever any of the acts in furtherance of the conspiracy took
place.”).
4
When a defendant enters a guilty plea, he waives various constitutional rights,
and those rights must be specifically addressed during a plea hearing. Boykin v.
Alabama, 395 U.S. 238, 242-44 (1969). Accordingly, Rule 11 requires that a district
court advise the defendant of, among other things,
the waiver of certain constitutional rights by virtue of a guilty plea, the nature
of the charges to which he or she is pleading guilty, the maximum possible
penalty to which he or she is exposed, the court’s obligation to apply the
Sentencing Guidelines and discretion to depart from those guidelines under
some circumstances, and the terms of any plea-agreement provision waiving
the right to appeal or to collaterally attack the sentence.
United States v. Schweitzer, 454 F.3d 197, 202-03 (3d Cir. 2006) (quotation marks,
alterations, and citations omitted). A district court must also “ensure that the defendant
receives these caveats, understands them, and still wishes of his or her own volition to
plead guilty.” Id. at 203.
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witnesses; (b) his right to testify or not testify at trial; and (c) his right to be presumed
innocent by the jury unless the Government proved his guilt beyond a reasonable doubt.
The Court also informed Rodriguez of the penalties he faced, explained the Sentencing
Guidelines, and described other consequences of his plea. Finally, the record shows that
there was a factual basis for the plea. Because the plea complied with the Constitution
and Rule 11 and the record supports the Court’s finding that the plea was knowing and
voluntary, there is no issue of arguable merit concerning the plea’s validity.
Finally, Rodriguez’s sentence was procedurally and substantively reasonable. See
United States v. Tomko, 562 F.3d 558, 566 (3d Cir. 2009) (en banc). With respect to
procedural reasonableness, a district court must (1) calculate the applicable Guidelines
range, (2) consider departure motions, and (3) meaningfully address all relevant 18
U.S.C. § 3553(a) factors. United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006).
The District Court fulfilled these requirements. First, the Court’s Guidelines
calculation was supported by the facts and law. Second, the Court granted a departure.
Third, the Court gave “rational and meaningful” consideration to the § 3553(a) factors.
See Tomko, 562 F.3d at 568 (quoting United States v. Grier, 475 F.3d 556, 571 (3d Cir.
2007) (en banc)). Specifically, the Court considered Rodriguez’s background, noting that
he was twenty-eight years old with a “virtually non-existent” employment history and
drug and domestic violence convictions. App. 51-52. The Court also considered the
nature and circumstances of the offense, observing that Rodriguez was “involved in at
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least 500 grams of methamphetamine distribution,” while on supervision for another
offense, and that he used violence in connection with the drug organization’s activities.
App. 51-52. Thus, the sentence was procedurally reasonable.
The sentence was also substantively reasonable. A sentence is substantively
reasonable unless “no reasonable sentencing court would have imposed the same
sentence on that particular defendant for the reasons the district court provided.” Tomko,
562 F.3d at 568. Given Rodriguez’s offense conduct, which included the distribution of
large quantities of methamphetamine, the use of violence, and his commission of this
crime while on supervision for another offense, we cannot conclude that no reasonable
sentencing court would have imposed this within-Guidelines sentence of 240 months’
imprisonment. Thus, any challenge to the substantive reasonableness of Rodriguez’s
sentence would lack merit.5
5
Rodriguez’s pro se arguments also fail to present nonfrivolous issues. First,
Rodriguez argues that the leadership enhancement does not apply to him because he only
had three co-defendants. However, the number of co-defendants is not dispositive.
Rather, the enhancement focuses on the number of participants in the criminal activity
and applies when the defendant organizes or leads criminal activity involving five or
more participants. See U.S.S.G. § 3B1.1(a). The factual basis for the plea and the
Presentence Report identifies four other people involved in the conspiracy and Rodriguez
agreed he was the leader. Therefore, this argument is frivolous.
Second, Rodriguez argues that an enhancement for a defendant who “used
violence, made a credible threat to use violence, or directed the use of violence,”
U.S.S.G. § 2D1.1(b)(2), does not apply to him because the PSR does not provide a victim
impact statement. The absence of a victim impact statement has no bearing on the
factually supported basis for the enhancement.
Third, Rodriguez argues that an enhancement for a defendant who possesses a
dangerous weapon, see U.S.S.G. § 2D1.1(b)(1), does not apply to him because no
8
III
For the foregoing reasons, we will affirm the District Court’s judgment and grant
counsel’s motion to withdraw.
firearms were involved in his case. Use of a firearm, however, is not required for the
enhancement to apply. Rather, Rodriguez and his co-conspirators’ use of a taser to
punish someone suspected of stealing the organization’s money constitutes use of a
dangerous weapon. See, e.g., United States v. Agron, 921 F.2d 25, 26 (2d Cir. 1990)
(holding that a stun gun is a U.S.S.G. § 2D1.1(b)(1) “dangerous weapon”); cf. United
States v. Quiver, 805 F.3d 1269, 1272 (10th Cir. 2015) (holding that a stun gun is a
U.S.S.G. § 2A2.2(b)(2) “dangerous weapon”). Moreover, members of the conspiracy
possessed firearms, which also warrants applying the dangerous weapon enhancement.
See United States v. Otero, 890 F.2d 366, 367 (11th Cir. 1989) (holding that a
defendant’s sentence enhancement under U.S.S.G. § 2D1.1(b)(1) can be proper for a co-
conspirator’s possession of firearms); see also Pinkerton v. United States, 328 U.S. 640,
646-47 (1946) (“[I]n the law of conspiracy . . . the act of one conspirator . . . in
furtherance of the conspiracy [can be] attributable to the others.”). Therefore, the §
2D1.1(b)(1) enhancement was appropriate.
Finally, Rodriguez argues that his counsel was ineffective both by misleading him
about the sentencing ramifications of his plea agreement and by failing to “properly
negotiate the supposed facts” of his PSR. Pro Se Br. 1, 3, 6. Ineffective assistance of
counsel claims are generally more appropriately brought on collateral attack pursuant to
28 U.S.C. § 2255, rather than on direct appeal. United States v. Thornton, 327 F.3d 268,
272 (3d Cir. 2003). In any event, the record belies his assertions concerning sentencing.
The District Court explained to Rodriguez the sentencing ramifications of his plea,
including the potential maximum sentence of life, which Rodriguez confirmed he fully
understood. The Court also reviewed with Rodriguez that he could not withdraw his plea
if the Court did not accept recommendations about his sentence. Finally, in his plea
agreement, Rodriguez represented that “[n]o other promises or inducements have been or
will be made to the defendant in connection with this case, nor have any predictions . . .
been made in connection with this plea.” Supp. App. 24. Therefore, Rodriguez’s pro se
arguments concerning his understanding about the consequences of his plea fail to
present nonfrivolous issues.
9