United States v. Batista , 117 F. App'x 169 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
11-23-2004
USA v. Batista
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1023
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1023
UNITED STATES OF AMERICA
v.
JUAN BATISTA,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(Dist. Ct. No. 3:CR-02-314)
District Judge: Honorable James M. Munley
Submitted November 12, 2004
Before: McKEE and CHERTOFF, Circuit Judges, and BUCKWALTER,* District
Judge.
(Filed: November 23, 2004)
JAMES V. WADE, ESQ.
Federal Public Defender
100 Chestnut Street
Suite 306
*
The Honorable Ronald L. Buckwalter, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
Harrisburg, Pennsylvania 17101
By: Gino A. Bartolai, Jr., Esq.
Assistant Federal Public Defender
Attorney for Appellant
THOMAS A. MARINO, ESQ.
United States Attorney
309 Federal Building
Scranton, Pennsylvania 18501
By: Francis P. Sempa, Esq.
Assistant United States Attorney
Attorney for Appellee
OPINION OF THE COURT
CHERTOFF, Circuit Judge.
Appellant Juan Batista was sentenced to 151 months imprisonment in the court
below, in part because the District Court classified him as a career offender. Batista
challenges that classification. Furthermore, Batista’s attorney moves for permission to
withdraw as counsel, pursuant to Anders v. California, 386 U.S. 738 (1867). We will
affirm Batista’s judgment of conviction and sentence, and grant his attorney’s motion to
withdraw.
I
Batista was arrested on December 23, 2002, based on a one-count indictment that
was returned on December 17, 2002. The indictment charged Batista with conspiracy to
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distribute and possess with intent to distribute in excess of 100 grams of heroin and in
excess of fifty grams of cocaine base (i.e., crack) and cocaine, in violation of 21 U.S.C.
§ 846. Superseding indictments were filed on February 11 and March 25, 2003, but the
core charge remained the same.
On May 9, 2003, Batista signed a plea agreement in which he agreed to plead
guilty to count one of the second superseding indictment. Pursuant to that agreement,
Batista and the government agreed to recommend to the court that Batista was involved
in the distribution of more than 100 but less than 1000 grams of heroin. The government
also agreed to recommend that Batista receive a three-level downward departure for
acceptance of responsibility. Batista agreed to cooperate, in exchange for which the
government agreed that, if Batista’s assistance was substantial, it would provide a
downward departure letter, pursuant to U.S.S.G. § 5K1.1.
On June 23, 2003, Batista appeared in court and pleaded guilty to count one of the
second superseding indictment. The presentence report (PSR) classified Batista as a
career offender pursuant to U.S.S.G. § 4B1.1. In support of this classification, the
probation officer cited three prior felony drug convictions. As a result of this
classification, Batista’s offense level rose from twenty-nine to thirty-one and his criminal
history category rose from V to VI. Batista was awarded three points for acceptance of
responsibility, resulting in a range of 188 to 235 months. The PSR identified a
substantial-assistance motion as the sole ground for a downward departure.
3
On September 8, 2003, Batista objected to the PSR, arguing that he was not a
career offender because one of his previous drug convictions was too remote to be
counted as a predicate offense, and because two of his previous drug convictions were
combined for disposition and sentencing and as such were related for purposes of the
Guidelines.
The government moved for a downward departure on December 15, 2003,
acknowledging Batista’s substantial assistance and recommending that the court subtract
two offense levels and sentence Batista within the range of 151 to 188 months.
At sentencing on December 18, 2003, the court first heard argument on Batista’s
objections to the career offender classification. The court concluded that all three of
Batista’s previous drug convictions counted as predicate offenses. With respect to the
first conviction, the court determined that it was not remote because it was imposed
within fifteen years of Batista’s commencement of the instant offense. As to the second
and third convictions, the court concluded that the two were not related by virtue of an
intervening arrest. The court then granted the government’s § 5K1.1 motion and
departed down the requested two levels. Batista asked the court to depart further based
on the extraordinary nature of his assistance. While acknowledging its authority to
depart further, the court declined to do so and sentenced Batista to 151 months in prison,
followed by a four-year period of supervised release.
4
II
Our review of the District Court’s application of the Guidelines is plenary. E.g.,
United States v. Murillo, 933 F.2d 195, 197 (3d Cir. 1991). Under the Guidelines,
Batista qualifies as a career offender if (1) he was at least eighteen years old at the time
he committed the instant offense, (2) the instant offense is a felony that is either a crime
of violence or a controlled substance offense, and (3) he has at least two prior felony
convictions of either a crime of violence or a controlled substance offense. U.S.S.G.
§ 4B1.1(a).
The first two requirements are clearly met, and Batista does not appear to argue
otherwise. Batista was over forty years old when he committed the instant offense,
which was a controlled substance offense, see id. § 4B1.2(b). Batista therefore focuses
his argument on the third requirement, arguing that, for the purposes of § 4B1.1, he does
not have two prior felony convictions. We disagree.
The Guidelines define the term “two prior felony convictions” as follows:
(1) the defendant committed the instant offense of conviction subsequent to
sustaining at least two felony convictions of either a crime of violence or a
controlled substance offense (i.e., two felony convictions of a crime of
violence, two felony convictions of a controlled substance offense, or one
felony conviction of a crime of violence and one felony conviction of a
controlled substance offense), and (2) the sentences for at least two of the
aforementioned felony convictions are counted separately under the
provisions of §4A1.1(a), (b), or (c).
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Id. § 4B1.2(c). An application note to this provision defines a prior felony conviction to
mean “a prior adult federal or state conviction for an offense punishable by death or
imprisonment for a term exceeding one year, regardless of whether such offense is
specifically designated as a felony and regardless of the actual sentence imposed.” Id.
cmt. n.1. Convictions for offenses committed at age eighteen or older are adult
convictions. Id.
On July 16, 1986, Batista was arrested in the Bronx, New York, and charged with
attempted criminal sale of a controlled substance in the third degree, in violation of New
York law. Batista was convicted and, on March 7, 1988, sentenced to four to eight years
in prison. On September 20, 1994, Batista was arrested in Allentown, Pennsylvania, and
charged with possession of a controlled substance with intent to deliver, in violation of
Pennsylvania law, based on conduct that occurred earlier that day. Batista was again
arrested in Allentown, this time on October 25, 1994, and charged with three counts of
delivery of a controlled substance, in violation of Pennsylvania law, based on conduct
that occurred as late as October 5, 1994. Both cases were consolidated for plea and
sentencing, and on January 30, 1995, he pleaded guilty to both offenses. Batista was
sentenced on September 26, 1995 to an aggregate term of two to five years in prison.
Under New York law, attempted criminal sale of a controlled substance in the
third degree is a class B felony punishable by up to twenty-five years in prison. See N.Y.
Penal Law §§ 70.00(2)(b), 220.39. Under Pennsylvania law, both possession of a
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controlled substance with intent to deliver and delivery of a controlled substance are
violations of 35 Pa. Cons. Stat. § 780-113(a)(30). A violation of § 780-113(a)(30)
involving heroin—as Batista’s did—carries a maximum term of imprisonment of fifteen
years. See 35 Pa. Cons. Stat. §§ 780-104(1)(ii)(10), 780-113(f)(1).
A
We deal first with Batista’s contention that his first conviction was too remote in
time to act as a predicate for § 4B1.1. The Guidelines provide, in pertinent part, “Certain
prior sentences are not counted or are counted only under certain conditions: A sentence
imposed more than fifteen years prior to the defendant’s commencement of the instant
offense is not counted unless the defendant’s incarceration extended into this fifteen-year
period.” U.S.S.G. § 4A1.1 cmt. n.1.
Batista was sentenced for the New York conviction on March 7, 1988. As he was
arrested for the instant offense in December 2002, fewer than fifteen years have elapsed.1
This conviction was therefore properly counted.
B
Batista also argues that his two Pennsylvania convictions are related and therefore
cannot be counted separately. Of course, even if we were to agree that these convictions
are not properly counted separately, they would still count as one prior conviction and,
1
Of course, for similar reasons, Batista’s two Pennsylvania convictions are also not too remote
in time to be counted.
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along with the New York conviction, would trigger § 4B1.1. In any event, the two
Pennsylvania convictions were properly counted separately.
Under U.S.S.G. § 4A1.2(a)(2), prior sentences imposed in related cases, as
opposed to unrelated cases, are to be treated as one sentence. “Prior sentences are not
considered related if they were for offenses that were separated by an intervening arrest
(i.e., the defendant is arrested for the first offense prior to committing the second
offense).” Id. § 4A1.2 cmt. n.3. As discussed above, Batista was first arrested on
September 20, 1994 for an offense that occurred earlier that day. One of Batista’s
Pennsylvania convictions was based on this conduct. Batista committed other offenses,
including one on October 5, 1994, for which he was arrested on October 25, 1994. This
October 25 arrest matured into Batista’s second conviction. Therefore, because of the
intervening September 20 arrest, the District Court correctly counted the two convictions
separately.
III
In Anders, the Supreme Court held that where defense counsel, after a
conscientious examination, finds his or her client’s case to be wholly frivolous, he or she
“should so advise the court and request permission to withdraw.” 386 U.S. at 744. We
then fully examine the proceedings to determine whether in fact the case is wholly
frivolous. Id. If so, we may grant counsel’s request and dismiss the appeal. Id.
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After fully examining the proceedings, and for the reasons discussed above, we
conclude that Batista’s appeal is wholly frivolous.2 Counsel’s motion to withdraw is
therefore granted.
For the foregoing reasons, we will affirm the judgment of the District Court and
grant Batista’s attorney’s motion to withdraw as counsel.
2
Batista was offered an opportunity to file a pro se brief raising additional issues, but has not
done so.
9