United States v. Martinez ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
1-6-2005
USA v. Martinez
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-2342
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"USA v. Martinez" (2005). 2005 Decisions. Paper 1580.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 02-2342
UNITED STATES OF AMERICA
v.
JOHNNY MARTINEZ
a/k/a
BOSS
Johnny Martinez,
Appellant
On Appeal from the United States District Court for the
Eastern District of Pennsylvania
D.C. Criminal No. 00-cr-00024-6
District Judge: Hon. Ronald L. Buckwalter
Submitted Under Third Circuit LAR 34.1(a)
November 19, 2004
Before: SCIRICA, Chief Judge, McKEE and
CHERTOFF, Circuit Judges
(Opinion filed: January 6, 2005)
OPINION
McKEE, Circuit Judge.
Johnny Martinez appeals from the sentence that was imposed following his plea of
guilty to one count of a superceding indictment charging him with participating in a
conspiracy to distribute more than 50 grams of cocaine base, as well as heroin and an
undetermined amount of marijuana. For the reasons that follow, we will affirm.
Inasmuch as we write only for the parties, we need not reiterate the factual or
procedural history of this case in detail. The defendant pled guilty pursuant to a plea
agreement and stipulated that his offense involved more than 3,000 grams of crack
cocaine. His plea subjected him to a mandatory minimum sentence of 10 years
imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A). The sentence which he received, 70
months in prison followed by a term of supervised release, is less than the mandatory
minimum that would have applied absent the district court’s acceptance of the
government’s motion for a downward departure, and consideration the defendant received
for his acceptance of responsibility. The sentence is therefore clearly legal, and there is
no jurisdictional issue. See 18 U.S.C. § 3231.
Defense counsel has submitted a brief pursuant to Anders v. California, 386 U.S.
738 (1967) by which counsel represents that he has undertaken a conscientious review of
the record and is unable to identify any non-frivolous issue for appeal. We agree that no
such issue exists.
We do note, however, that although the government states in its brief that “[t]he
district court conducted a full and comprehensive plea colloquy [,]” Appellee’s Br. at 10,
defense counsel correctly notes that the district court failed to explain the effect of
supervised release. See Appellant’s Br. at 9. Nevertheless, as defense counsel concludes,
that error is harmless. Boykin v. Alabama, 395 U.S. 238 (1969), and Fed. R. Crim. Proc.
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11(h). See also, U.S. v. Henry, 893 F.2d 46, 48 (3d Cir. 1990).
The colloquy conducted by the district court explained that defendant was waiving
his right to self incrimination, trial by jury, and his right to confront his accusers.
Defendant was informed of the nature of the charge against him, the minimum penalty
provided by law, and the maximum possible penalty provided by law. Therefore, failure
to elaborate upon the operation of supervised release did not affect the defendant’s
substantial rights, and we therefore conclude that he knowingly, voluntarily, and
intelligently, pled guilty to count I. Given the court’s jurisdiction, there are no non-
frivolous issues for appeal and nothing more needs be said. See U.S. v. Ptomey, 366 F.2d
759, 660 (3d Cir. 1966) (“A plea of guilty is a waiver of all nonjurisdictional defects and
defenses and constitutes an admission of guilt.”).
Accordingly, for the reasons set forth herein we will affirm the judgment of
sentence entered on May 10, 2002.
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