United States v. Edwin Acosta-Brito

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 11-2189
_____________
UNITED STATES OF AMERICA
v.
EDWIN RAMON ACOSTA-BRITO,
also known as Edwin Acosta,
also known as Hector M. Vazquez-Roldan,
also known as Samuel Rivera,
also known as Hector Vazquez,
Appellant
______________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 10-cr-00695-001)
District Judge: Honorable William H. Yohn
____________
Submitted Under Third Circuit LAR 34.1(a)
April 17, 2012
____________
Before: VANASKIE, BARRY and CUDAHY,* Circuit Judges
(Opinion Filed: May 08, 2012)
*
Honorable Richard D. Cudahy, Senior Circuit Judge for the United States Court of
Appeals for the Seventh Circuit, sitting by designation.
1
____________
OPINION
____________
BARRY, Circuit Judge
Appellant Edwin Ramon Acosta-Brito (“Acosta”) appeals his judgment of
sentence after pleading guilty to illegal reentry after deportation, in violation of 8 U.S.C.
§ 1326. His counsel filed a motion to withdraw, and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Third Circuit L.A.R. 109.2(a), asserting that there
are no non-frivolous issues on appeal. We will affirm and grant the motion to withdraw.
I.
The facts of this case are straightforward. Acosta is a citizen of the Dominican
Republic who illegally entered the United States in August 2001. He was served with a
notice to appear, but he did not appear at his hearing and was ordered removed in
abstentia. In February 2004, he was apprehended by immigration officials in
Pennsylvania and, a month later, was deported to the Dominican Republic. In June 2006,
immigration officials discovered that Acosta had reentered the United States. He was
charged with illegal reentry and being an illegal alien in possession of a firearm, and was
sentenced to 30 months’ imprisonment followed by three years supervised release.
Acosta was deported once again on October 1, 2008. On September 16, 2010,
immigration officials learned that Acosta had illegally reentered the United States a
second time. He was apprehended in Philadelphia and was charged with illegal reentry.
2
After pleading guilty, the District Court sentenced Acosta to 18 months’ imprisonment, to
be served consecutively to a nine-month federal sentence that Acosta was already serving
for violating his supervised release. Acosta timely appealed.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Under Anders v. California, if appellate 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.” 386 U.S. 738,
744 (1967). “The Court’s inquiry when counsel submits an Anders brief is thus twofold:
(1) whether counsel adequately fulfilled the rule’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). With respect to the first requirement:
The duties of counsel when preparing an Anders brief are (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. Counsel
need not raise and reject every possible claim. However, at a minimum, he
or she must meet the “conscientious examination” standard . . . .
Id. With respect to our independent review of the record for non-frivolous issues, we
generally confine our scrutiny to those portions of the record identified by an adequate
Anders brief, and the appellant’s pro se filings. See id. at 301.
Reviewing counsel’s Anders brief together with the record, we conclude that
3
counsel has satisfied his obligation to conduct a “conscientious examination” of the case.
Likewise, our own independent analysis of the record reveals no error in either Acosta’s
guilty plea or sentence. With respect to the guilty plea, the District Court ensured that the
plea was voluntary, found that there was a factual basis for the plea, and otherwise
satisfied the procedural requirements of Federal Rule of Criminal Procedure 11. With
respect to sentencing, the Court ensured that Acosta had received and read the
presentence investigation report, correctly calculated the guideline range,1 clearly
indicated that the guidelines are advisory; analyzed the factors under 18 U.S.C. § 3553;
and otherwise satisfied the procedural requirements of Federal Rule of Criminal
Procedure 32.2 Finally, the sentence itself is substantively reasonable. Despite the
government’s argument that Acosta should be sentenced at the high end of the guideline
range, the Court imposed a sentence at the bottom of the range. In so doing, the Court
properly balanced the need for deterrence given Acosta’s multiple illegal entries against
other factors, including Acosta’s claim that he was motivated to return to the United
States out of concern for his family. In sum, the Court gave “rational and meaningful
1
Acosta was subject to a base offense level of 8 under USSG § 2L1.2(a) plus an
additional 8 levels under § 2L2.1(b)(1)(C) for having been previously deported for an
aggravated felony (i.e., alien in possession of a firearm). After subtracting three levels
for acceptance of responsibility, Acosta had a total offense level of 13, criminal history
category III, resulting in an advisory guideline range of 18 to 24 months’ imprisonment.
2
United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc) (an appeals court
ensures “that the district court committed no significant procedural error, such as failing
to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as
4
consideration” to the factors of § 3553(a), and the bottom of the guidelines sentence was
reasonable. Acosta has not filed a pro se brief or otherwise alleged any specific error.
Accordingly, we find no nonfrivolous grounds for appeal.
III.
For the foregoing reasons, we will affirm the judgment of sentence. Pursuant to
Third Circuit L.A.R. 109.2(b), we conclude that the issues presented in this appeal lack
legal merit for purposes of counsel filing a petition for writ of certiorari in the Supreme
Court of the United States We grant counsel’s motion to withdraw.
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence.”).
5