United States v. Depack ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-20-2007
USA v. Depack
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1597
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 06-1597
UNITED STATES OF AMERICA
v.
ROY DEPACK
a/k/a ROY J. DEPACK, JR.
Roy Depack,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
District Court No. 04-CR-0599
District Judge: The Honorable Faith S. Hochberg
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
February 12, 2007
Before: SMITH and FISHER, Circuit Judges,
and DIAMOND, District Judge*
(Filed: February 20, 2007 )
*
The Honorable Gustave Diamond, Senior District Judge for the United
States District Court for the Western District of Pennsylvania, sitting by
designation.
1
OPINION
SMITH, Circuit Judge.
On August 26, 2004, a grand jury returned an indictment against Roy
DePack, charging him with four counts of criminal conduct. Counts One and Two
alleged that DePack committed bank fraud in violation of 18 U.S.C. § 1344 and 18
U.S.C. § 2. Count Three alleged that he made counterfeit obligations and
securities in violation of 18 U.S.C. § 471. Count Four charged that he attempted
to sell counterfeit obligations in violation of 18 U.S.C. § 472. DePack initially
pleaded not guilty and moved to suppress certain evidence, including several
thousand dollars in counterfeit obligations. These items had been seized from an
upstairs apartment he occupied in his aunt’s house. The United States District
Court for the District of New Jersey denied the motion, finding that his aunt
reasonably believed that DePack had abandoned the premises and that his aunt’s
consent justified the warrantless search.
Thereafter, on March 2, 2005, after executing a plea agreement which
contained a waiver of his appellate rights, DePack pleaded guilty as charged in the
indictment. On February 7, 2006, the District Court sentenced DePack to, inter
alia, 70 months of imprisonment on each count, to be served concurrently.
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DePack filed a timely notice of appeal.1 His counsel concluded that there
were no non-frivolous issues to appeal and filed a motion to withdraw pursuant to
Anders v. California, 386 U.S. 738 (1967), together with a supporting brief. In
Anders, the Supreme Court held that the “constitutional requirement of substantial
equality and fair process” necessitates that appellant’s counsel vigorously act as an
advocate for the defendant. Id. at 744. Thus, counsel’s
role as advocate requires that he support his client’s appeal to the best
of his ability. Of course, if counsel finds his case to be wholly
frivolous, after a conscientious examination of it, he should so advise
the court and request permission to withdraw. That request must,
however, be accompanied by a brief referring to anything in the
record that might arguably support the appeal.
Id. In United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001), we reiterated that
an Anders brief must demonstrate that counsel has “thoroughly examined the
record in search of appealable issues,” and it must “explain why the issues are
frivolous.” Id. (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000)).
Consistent with this Court’s local rule, the Anders brief was served on
DePack and he was advised that he could file an informal response brief. See
Third Circuit L.A.R. 109.2(a). In his various submissions, DePack disputed his
counsel’s arguments on several points and asked for bail. After considering the
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We
exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a). See United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).
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arguments presented by counsel and DePack, the prosecution agreed with counsel
that there were no non-frivolous issues to raise on appeal.
We have thoroughly reviewed the record in this appeal and we conclude that
defense counsel has satisfied Youla’s requirements. He compiled an appendix
with the salient portions of the record, set forth the facts of the case, including the
procedural and substantive history of the case, identified six possible issues for
appeal, and explained why each issue was frivolous.
We agree with defense counsel that DePack’s guilty plea limits the issues he
may raise on appeal to claiming that he had a constitutional right not to be haled
into court on a charge, to challenging the validity of his guilty plea, and to
attacking the legality of his sentence. See United States v. Broce, 488 U.S. 563,
574-76 (1989); 18 U.S.C. § 3742(a); Tollett v. Henderson, 411 U.S. 258, 267
(1973); United States v. Hawthorne, 532 F.2d 318, 322 (3d Cir. 1976). Contrary
to DePack’s contention, we find that there was an adequate factual basis for
Depack’s plea to each count in the indictment. Our review of the plea colloquy
demonstrates that the District Court complied with the mandates of Federal Rule
of Criminal Procedure 11 and Boykin v. Alabama, 395 U.S. 238 (1969).
Accordingly, we conclude that the District Court did not err in finding that
DePack’s guilty plea was knowing and voluntary. Because DePack’s guilty plea
did not offend the United States Constitution, we find that he waived any
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challenge he may have had to the District Court’s order granting the motion to
suppress. Tollett, 411 U.S. at 267; Hawthorne, 532 F.2d at 322.
We recognize that DePack moved to withdraw his guilty plea. We find no
abuse of discretion by the District Court in denying the motion, however, as the
District Court appropriately noted that DePack did not meaningfully assert his
innocence. See United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003) (pointing
out that the District Court must evaluate, inter alia, whether the defendant asserted
his innocence). Indeed, at the hearing on the motion, DePack acknowledged that
he was guilty of the charges.
DePack’s guilty plea does not preclude him from challenging the legality of
his sentence. He contends that the District Court erred in calculating his
Guidelines range because it failed to give him three points for his acceptance of
responsibility. Even though DePack moved to withdraw his guilty plea, the
District Court granted him a one point reduction for his guilty plea. We fail to
find any error by the District Court in this assessment. Nor do we find any error
by the District Court in its exercise of discretion in sentencing him under 18
U.S.C. § 3553(a).
Defense counsel also appropriately points out that any claims by DePack of
ineffective assistance of counsel should not be raised in this direct appeal. As we
observed in United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003), it is
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preferable to review ineffectiveness claims on collateral review. Id. (citing
Massaro v. United States, 538 U.S. 500 (2003)). For that reason, we will not
address DePack’s claims of ineffectiveness by both counsel at this juncture.
In sum, after conducting our own independent review, we find no non-
frivolous issues to raise on appeal. Moreover, we cannot ignore the fact that
DePack’s plea agreement contained a waiver of his appellate rights and that he
acknowledged during his plea colloquy that he understood that he was waiving his
right to a direct appeal. In United States v. Khattak, 273 F.3d 557, 562 (3d Cir.
2001), we declared that “waivers of appeals, if entered into knowingly and
voluntarily, are valid.” Thus, his appellate waiver provides an additional basis for
finding that this appeal lacks merit. Accordingly, we will grant counsel’s motion
to withdraw and we will affirm the February 9, 2006 judgment of the District
Court. We further certify that the issues presented in this appeal lack legal merit
and thus do not require the filing of a petition for writ of certiorari with the
Supreme Court. Third Cir. L.A.R 109.2(b).
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