United States v. Sanchez-Reyna , 39 F. App'x 781 ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
7-15-2002
USA v. Sanchez-Reyna
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-2190
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Recommended Citation
"USA v. Sanchez-Reyna" (2002). 2002 Decisions. Paper 394.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-2190
UNITED STATES OF AMERICA
v.
LUCIANO ABRAHAM SANCHEZ-REYNA,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
D.C. Crim. No. 00-00723-1
Honorable Alfred J. Lechner, Jr., District Judge
Submitted under Third Circuit LAR 34.1(a)
July 12, 2002
BEFORE: SCIRICA and GREENBERG, Circuit Judges,
and FULLAM, District Judge*
(Filed: July 12, 2002)
*Honorable John P. Fullam, Senior Judge of the United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
GREENBERG, Circuit Judge.
Appellant Luciano Abraham Sanchez-Reyna, while represented by a retained
attorney, Daniel L. Weiss, pleaded guilty to an information charging him with unlawful
reentry into the United States in violation of 8 U.S.C. 1326(a) and (b)(2) after being
deported following his conviction for an aggravated felony. The district court calculated
his total offense level at 21 which, with his criminal history category of III, yielded a
sentencing range of 46 to 57 months. The district court, finding that there was no reason
to depart from the sentencing guidelines range, sentenced him to a term of 54 months to
be followed by a three-year term of supervised release. The court did not impose a fine.
Sanchez-Reyna filed a timely appeal to this court and moved for the
appointment of an attorney under the Criminal Justice Act. We initially appointed Weiss
to represent him on this appeal but subsequently granted his application to withdraw and
appointed Steven A. Feldman in his place. Feldman thereafter filed a motion to
withdraw under Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), together with
a comprehensive and thoughtful brief making a thorough analysis of all possible issues
on this appeal and concluding that, if raised, they would be frivolous. Accordingly, he
has requested that we relieve him as counsel and dismiss the appeal. The government
concurs.
We independently have reviewed this matter and agree with the parties’ analysis
that there are no non-frivolous issues that could be advanced on the appeal. The possible
issue that comes closest to being substantial is attributable to the sentencing disparity
between the sentences imposed upon a plea of guilty for illegal reentry in the Southern
District of California and the rest of the country by reason of approximately one-half of
the prosecutions being brought nationally for illegal reentry in that district. See United
States v. Bonnet-Grullon, 53 F. Supp. 2d 430, 432 (S.D.N.Y. 1999) , aff’d, 212 F.3d 692
(2d Cir. 2000). To dispose of this inordinate volume of cases, the United States Attorney
in the Southern District of California usually permits the defendant to plead guilty to
simple illegal reentry under 8 U.S.C. 1325(a), pursuant to a fast track program, and
thus be eligible for a lower guidelines sentence than that imposed for identical conduct in
cases prosecuted under section 1326(a). In light of this practice, Sanchez-Reyna’s brief
contends that while the court here imposed a 54-month sentence, if he had "committed
the same offense in San Diego, he would have received 24 month[s] under the ’fast-
track’ program." Br. of Appellant at 13. The brief recites that "it is unfair for a
defendant’s sentence to turn on whether he illegally re-entered the United States in New
Jersey or California." Id. Thus, the brief argues that he should be entitled to relief by
reason of this disparity.
Nevertheless, the brief acknowledges that the case law establishes that such
relief is not available. See United States v. Banuelos-Rodriguez, 215 F.3d 969 (9th Cir.
2000) (en banc); United States v. Bonnet-Grullon, 212 F.3d 692 (2d Cir. 2000). While it
would be possible for courts in districts other than the Southern District of California to
depart downwards from the sentencing ranges in section 1326(a) and (b)(2) convictions
so that the ranges would be consistent with those in section 1325(a) convictions, the
above courts of appeals cases demonstrate there is no legal basis for such a departure.
Moreover, Sanchez-Reyna’s attorney did not ask for a departure on the basis of this
disparity, and, thus, the absence of a departure could be challenged on this appeal only
on a plain error basis. See United States v. Vazquez, 271 F.3d 93, 99-100 (3d Cir. 2001)
(en banc), cert. denied, 70 U.S.L.W. (U.S. June 28, 2002). But clearly the district court
did not commit error at all, much less plain error, in not departing from the guideline
range. Thus, the disparity issue, though not unappealing, is simply not meritorious.
Sanchez-Reyna’s brief also points out that there appears to be no basis to argue
that his district court attorney was ineffective. We agree with this position, at least
insofar as we can review the attorney’s performance from the record before us. In any
event, as the brief further points out, an appellant ordinarily cannot raise an argument on
direct appeal that his district court attorney was ineffective. See United States v. Sandini,
888 F.2d 300, 311-12 (3d Cir. 1989).
For the foregoing reasons, we will grant Feldman’s motion to withdraw and will
dismiss this appeal.
TO THE CLERK:
Please file the foregoing not precedential opinion.
/s/ Morton I. Greenberg
Circuit Judge
DATED