United States v. Carlos Hernandez

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-2412
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UNITED STATES OF AMERICA
v.
CARLOS HERNANDEZ,
a/k/a LOS’
CARLOS HERNANDEZ,
Appellant
__________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 1:02-cr-00684-004)
District Judge: Honorable Robert B. Kugler
__________________________
Submitted Under Third Circuit LAR 34.1(a)
April 20, 2012
Before: VANASKIE, BARRY and CUDAHY, * Circuit Judges
(Opinion Filed: June 21, 2012)
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OPINION
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VANASKIE, Circuit Judge.
*
Honorable Richard D. Cudahy, Senior Circuit Judge for the United States Court
of Appeals for the Seventh Circuit, sitting by designation.
Carlos Hernandez appeals from the judgment entered in the United States District
Court for the District of New Jersey revoking his supervised release and sentencing him
to 24 months’ imprisonment. Pursuant to Anders v. California, 386 U.S. 738 (1967),
counsel for Hernandez filed a brief and a motion for leave to withdraw, asserting that
there are no nonfrivolous issues on appeal. We agree. Accordingly, we will grant the
motion for leave to withdraw and affirm the District Court’s judgment. 1
I.
On May 5, 2006, Hernandez was sentenced to 78 months’ imprisonment to be
followed by five years of supervised release on his conviction in the District of New
Jersey for conspiracy to distribute heroin and cocaine. Hernandez’s supervised release
commenced on May 21, 2008.
On November 17, 2009, a Petition for Warrant or Summons for Offender Under
Supervision was filed, alleging that Hernandez violated supervised release by: (1) being
arrested on a drug charge in New York; (2) possessing a firearm; (3) leaving New Jersey
without permission; (4) failing to notify his probation officer of the New York arrest; and
(5) possessing a controlled substance. On December 7, 2010, the petition was amended
to allege that Hernandez had been convicted in New York on the charge of attempted
possession of a controlled substance and had been sentenced to three years in state
custody. The remaining violations were reiterated in the amended petition.
1
The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We
have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
The District Court held a revocation hearing on May 10, 2011. At that time,
Hernandez was serving his three-year state court sentence for the attempted possession
conviction, the same conviction that served as a basis for the amended petition to revoke
supervised release. After the District Court questioned Hernandez regarding his
understanding of the elements of the violation and that it carried a potential maximum
sentence of 60 months in prison, Hernandez admitted that he had indeed been convicted
in New York on the charge of attempted possession of heroin.
Hernandez’s advisory guideline range was 8 to 14 months because the attempted
possession conviction was a Grade B violation and he was in criminal history category
III. See U.S.S.G. § 7B1.4(a). The District Court, exercising its discretion, imposed a
sentence of 24 months’ imprisonment, to run consecutive to any term of imprisonment
Hernandez was currently serving.
On May 11, 2011, Hernandez, proceeding pro se, presented to the court a letter
that contested his revocation sentence. Hernandez’s pro se submission contended that he
should have received credit against his revocation sentence from October 29, 2010, until
May 10, 2011. On May 16, 2011, counsel for Hernandez asked the District Court to
characterize the defendant’s submission as seeking relief to correct or reduce a sentence
under Rule 35(a) of the Federal Rules of Criminal Procedure, rather than a notice of
appeal as it was initially docketed. The District Court agreed to construe the letter as a
Rule 35(a) motion. Observing that “no arithmetical, technical or other clear [error]
occurred in that the Court [o]rdered the sentence imposed to run consecutively to any
other sentence, and . . . the Bureau of Prisons will give credit against the sentence for
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whatever time in custody federal law permits,” the District Court denied Hernandez’s
motion. (A. 10.)
Hernandez, again proceeding pro se, filed a notice of appeal on May 17, 2011. 2
By Order entered June 6, 2011, trial court counsel was directed to continue to represent
Hernandez on appeal. Counsel for Hernandez has now moved for leave to withdraw,
asserting that there are no nonfrivolous issues to present for our consideration.
II.
Pursuant to Anders, counsel for a defendant may seek to withdraw if after
reviewing the District Court record, he or she is “persuaded that the appeal presents no
issue of even arguable merit.” See 3d Cir. L.A.R. 109.2(a). When presented with such a
request, our responsibility is to determine “(1) whether counsel adequately fulfilled
[Third Circuit Local Appellate Rule 109.2(a)’s] requirements; and (2) whether an
independent review of the record presents any nonfrivolous issues.” United States v.
Youla, 241 F.3d 296, 300 (3d Cir. 2001) (citations omitted). Specifically, counsel is
required “(1) to satisfy the court that counsel has thoroughly examined the record in
search of appealable issues, and (2) to explain why the issues are frivolous.” Id.
(citations omitted). In conducting an independent review of the record, “we confine our
scrutiny to those portions of the record identified by an adequate Anders brief” and “those
2
In his notice of appeal, Hernandez does not challenge either the revocation of
supervised release or the prison term imposed by the District Court. Instead, he again
complains that he was entitled to credit against his federal prison term. Specifically, he
asserts that he is entitled to credit from July 9, 2010, presumably when a federal detainer
was lodged against him, until May 10, 2011, when he was sentenced.
4
issues raised in Appellant’s pro se brief.” Id. at 301. Hernandez, although informed of
his right to file a brief on his own, has not submitted any document to this Court since
filing his notice of appeal.
Counsel for Hernandez examined the record, and we are convinced that counsel
has identified all appealable issues and explained why those issues are frivolous. Based
on our independent review of the record, we agree that there are no meritorious issues
because (1) Hernandez knowingly and voluntarily admitted that he violated the terms of
supervised release, (2) the District Court imposed a procedurally sound and substantively
reasonable sentence, and (3) the Bureau of Prisons, not the courts, will determine whether
Hernandez should receive federal custodial credits for prison time served prior to the
May 10, 2011 revocation of supervised release.
A.
Because Hernandez admitted to violating the terms of supervised release, “the
inquiry is ordinarily confined to whether the underlying plea was both counseled and
voluntary.” United States v. Broce, 488 U.S. 563, 569 (1989). There is no dispute that
Hernandez was represented by counsel. Whether his admission to violating supervised
release was knowing and voluntary is assessed in the context of the totality of the
circumstances. See United States v. Hodges, 460 F.3d 646, 652 (5th Cir. 2006). In this
case, the District Court conducted an adequate colloquy that assured that Hernandez
knowingly and voluntarily admitted violating the terms of supervised release by having
been convicted in state court of attempted possession of a controlled substance. The
District Court repeatedly questioned Hernandez, asking whether he had ample time to
5
speak with counsel about the revocation proceeding and offering to provide additional
time for consultation if Hernandez deemed it necessary. The District Court also
repeatedly explained that the violation of supervised release carried a maximum potential
penalty of 60 months’ imprisonment. On every occasion, Hernandez acknowledged that
he understood the potential penalty. Additionally, in open court, Hernandez recognized
that he violated the terms of supervised release because of his conviction in New York
and asked for leniency at sentencing. Accordingly, any claim that Hernandez did not
knowingly and voluntarily admit the supervised release violation would be frivolous.
B.
Any attack on the reasonableness of the sentence is also meritless. The District
Court followed proper procedure by calculating the advisory guideline range, considering
any departure motions, and weighing the 18 U.S.C. § 3553(a) sentencing factors. See
United States v. Grier, 585 F.3d 138, 141-42 (3d Cir. 2009) (citation omitted).
In the context of revocation sentences, we examine the substantive
“reasonableness with regard to the factors set forth in 18 U.S.C. § 3553(a).” United
States v. Bungar, 478 F.3d 540, 542 (3d Cir. 2007) (citations omitted). The District
Court noted that Hernandez committed a very serious crime that involved a suspected
$18,000 worth of heroin after being released from prison for a conviction that entailed
similar conduct. The District Court also cited a need to protect the public because of the
seriousness of the offense and Hernandez’s repeated criminal conduct. The District
Court considered these factors, while also recognizing that Hernandez cooperated with
authorities, in fashioning the above-guideline range sentence.
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It is also not unreasonable to have the revocation sentence run consecutively to the
state court conviction that served as the basis for the supervised release revocation. In
fact, the Sentencing Guidelines recommend that Hernandez’s revocation term of
imprisonment be served consecutively to the conviction for the underlying offense. See
U.S.S.G § 7B1.3(f). Accordingly, the District Court was well within its discretion to
impose the 24 month sentence to be served consecutively to the underlying New York
state drug conviction.
C.
Counsel concludes the Anders brief by explaining that Hernandez’s contention,
asserted in his pro se notice of appeal, that he is entitled to federal custodial credits
against his revocation sentence is not properly before us at this time. We agree with
counsel’s analysis. We do not have the authority to award Hernandez federal custodial
credits for the time he served while awaiting the resolution of his supervised release
revocation proceeding. The authority to calculate a federal sentence and provide credit
for time served is delegated to the Attorney General, who acts through the Bureau of
Prisons. See United States v. Wilson, 503 U.S. 329, 333-35 (1992). Therefore,
Hernandez’s claim is not ripe for review by the courts until he pursues and exhausts the
issue with the Bureau of Prisons.
III.
For the reasons set forth above, we will affirm the judgment of the District Court
and grant defense counsel’s motion to withdraw.
7