United States v. Wilmer Vasquez-Algarin , 572 F. App'x 124 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-3527
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UNITED STATES OF AMERICA
v.
WILMER VASQUEZ-ALGARIN,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-11-cr-00200-003)
District Judge: Honorable Sylvia H. Rambo
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Submitted Under Third Circuit LAR 34.1(a)
June 2, 2014
Before: HARDIMAN, SCIRICA and ROTH, Circuit Judges.
(Filed: July 9, 2014)
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OPINION
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HARDIMAN, Circuit Judge.
Wilmer Vasquez-Algarin appeals the District Court’s judgment of conviction and
sentencing order. Counsel for Vasquez-Algarin has moved for permission to withdraw
pursuant to Anders v. California, 386 U.S. 738 (1967). We will grant counsel’s motion and
affirm the District Court’s order.
I
Because we write for the parties, who are well acquainted with the case, we recite
only the facts and procedural history essential to our decision.
Vasquez-Algarin pleaded guilty under a plea agreement to one count of conspiring to
distribute and possess with intent to distribute and dispense 500 grams or more of cocaine
hydrochloride. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), 846. The plea agreement included
a waiver of the right to a direct appeal. A Spanish interpreter translated the plea agreement
for Vasquez-Algarin, who does not speak English. Vasquez-Algarin signed the agreement
and testified at the change of plea hearing that he knowingly and voluntarily entered into it.
Before sentencing, Vasquez-Algarin filed a motion to withdraw his guilty plea, which the
District Court denied. The District Court sentenced Vasquez-Algarin to 108 months’
imprisonment, the bottom of the Guidelines range.
Vasquez-Algarin filed this timely appeal, and his counsel moved to withdraw. 1
II
In a case arising under Anders, we determine whether: (1) counsel has adequately
fulfilled the Anders requirements; and (2) an independent review of the record presents any
non-frivolous issues. United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).
To meet the first prong, appointed counsel must examine the record, conclude that
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there are no non-frivolous issues for review, and request permission to withdraw. Counsel
must accompany a motion to withdraw with “a brief referring to anything in the record that
might arguably support the appeal.” Anders, 386 U.S. at 744. Defense counsel identified
two potential grounds for appeal—Vasquez-Algarin’s request to withdraw his guilty plea and
the District Court’s Guidelines calculation—and discussed why they lack merit.
A defendant must establish a “fair and just reason” in order to withdraw a guilty plea.
See Fed. R. Crim. P. 11(d). That analysis turns on three factors: “(1) whether the defendant
asserts his innocence; (2) the strength of the defendant’s reasons for withdrawing the plea;
and (3) whether the government would be prejudiced by the withdrawal.” United States v.
Jones, 336 F.3d 245, 252 (3d Cir. 2003). The District Court properly denied the motion.
Vasquez-Algarin cannot dispute that he understood the agreement because a Spanish
interpreter translated the plea hearing proceedings and the plea agreement for him. Nor has
he asserted his innocence; in fact he restated his guilt in a hearing on the motion to
withdraw. With respect to the District Court’s calculation of the Guidelines range for the
sentence, Vasquez-Algarin’s counsel rightly notes that Vasquez-Algarin waived his right to a
direct appeal.
In sum, we find that counsel’s discussion of the reasons why no appealable issue
exists meets the requirements of Anders’s first prong. Our independent review of the
record under Anders’s second prong confirms counsel’s view that there are no meritorious
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
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issues for appeal. Vasquez-Algarin’s plea agreement, which as we said was entered into
knowingly and voluntarily, waived his right to a direct appeal. Thus, even if meritorious
appellate issues existed, we would not review them.
III
For the reasons stated, we will affirm the District Court’s judgment of conviction
and sentence, and in a separate order, grant counsel’s motion to withdraw.
under 28 U.S.C. § 1291.
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