United States v. Rassol China

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-1023
_____________
UNITED STATES OF AMERICA
v.
RASSOL CHINA,
Appellant
_____________
On Appeal from the United States District Court
for the District of New Jersey
District Court No. 2-15-cr-00203-002
District Judge: The Honorable Jose L. Linares
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 29, 2016
Before: AMBRO, SMITH, and FISHER, Circuit Judges
(Filed: October 4, 2016)
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OPINION*
_____________________
SMITH, Circuit Judge.
*
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
A grand jury in the District of New Jersey returned an indictment against
Rassol China and four other individuals, charging China with conspiring to
distribute heroin in violation of 21 U.S.C. § 846 and distribution of heroin in
violation of 21 U.S.C. § 841(b)(1)(A) and 18 U.S.C. § 2. These charges were filed
after the police knocked and announced themselves at a heroin operation in a third
floor apartment, prompting China and three others to jump out of the apartment
window (the police apprehended the fifth individual before they entered the
apartment building). China apparently fractured his heels in the jump, but
nonetheless was able to reach his car, drive directly toward a law enforcement
officer, almost hitting him, and elude capture. Law enforcement subsequently
apprehended China in the hospital where he was receiving treatment.
Thereafter, China pleaded guilty pursuant to a written plea agreement that
included an appellate waiver. A presentence report was prepared, which
determined that China was a career offender because of multiple controlled
substance convictions. See U.S.S.G. § 4B1.1. Although China initially challenged
the applicability of the career offender enhancement, defense counsel withdrew
that challenge at sentencing. The enhancement resulted in an offense level of 34
and a criminal history category of VI, yielding an advisory Guideline range of 262
2
to 327 months.1 The District Court sentenced China to 262 months of
imprisonment.
This timely appeal followed.2 Counsel submitted an Anders brief and a
motion seeking to withdraw as counsel. See Anders v. California, 386 U.S. 738,
744 (1967). After reviewing the Anders brief, we are satisfied that counsel
“thoroughly examined the record in search of appealable issues” and adequately
“explain[ed] why the issues are frivolous.” United States v. Youla, 241 F.3d 296,
300 (3d Cir. 2001).
China’s guilty plea limited the issues he could challenge on appeal to
whether he could be haled into court on the charges in the indictment, the validity
of his guilty plea, and the legality of the sentence imposed. See United States v.
Broce, 488 U.S. 563, 570-75 (1989). Counsel explained at length that the guilty
plea colloquy largely complied with the requirements of Federal Rule of Criminal
Procedure 11(b). Counsel appropriately noted that the colloquy did not advise
China, contrary to Rule 11(b)(1)(H)’s directive, of the maximum possible penalty
of life imprisonment. This omission, counsel explained, would not warrant setting
aside China’s conviction because plain error review applied under United States v.
1
Before the PSR applied the career offender enhancement, China’s offense level,
without the acceptance of responsibility adjustment, was 32 and his criminal
history category was VI.
2
The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise
jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
3
Vonn, 535 U.S. 55, 59 (2002), and the error did not affect China’s substantial rights
as the plea agreement explicitly set out the minimum and maximum sentence at
play. The government agreed that China was well aware of the statutory maximum
of life imprisonment, noting it was set forth in his plea agreement, as well as in a
document entitled “Application for Permission to Enter Plea of Guilty” that China
signed after reviewing it with counsel. We agree that this omission in the plea
colloquy did not affect China’s substantial rights.
Defense counsel also recognized in the Anders brief that China’s plea
agreement contained an appellate waiver. The government acknowledged that the
colloquy with regard to the appellate waiver was deficient in certain respects and
elected not to enforce the waiver. 3 Because the government did not invoke the
appellate waiver, we need not examine whether the waiver was valid and bars our
review. See United States v. Goodson, 544 F.3d 529, 535 (3d Cir. 2008). We note,
however, that even if the appellate waiver were unenforceable, that would result in
setting aside only the waiver (not the District Court’s judgment) and removing any
bar to our review. Id. at 541.
Having concluded there is no basis for setting aside China’s guilty plea, we
turn to the legality of China’s sentence, which is reviewed for an abuse of
3
Indeed, China’s pro se submission, which he filed pursuant to Third Circuit
L.A.R. 109.2(a), also notes there was error in the District Court’s review of the
terms of the appellate waiver.
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discretion. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009). We
conclude that the District Court did not abuse its discretion in sentencing China to
262 months of imprisonment.
Counsel noted that the District Court arguably erred in applying an
enhancement for obstruction of justice under U.S.S.G. § 3C1.2 because that
enhancement was not contemplated as part of the plea agreement.4 Nonetheless,
counsel acknowledged that application of this enhancement does not entitle China
to relief. We agree. The § 3C1.2 obstruction of justice enhancement affected only
the total offense level of 32, which was rendered inoperative once it was
determined that the offense level from the career offender table was “greater than
the offense level otherwise applicable.” U.S.S.G. § 4B1.1(b). Thus, the District
Court did not err in calculating the Guideline range under the career offender
guideline. Nor do we discern any procedural error as there were no motions by
China for the District Court to rule upon and the Court fully considered the
argument for a downward variance. The within-Guideline sentence, given the
Court’s explanation for the sentence imposed, was not substantively unreasonable.
4
We note that China’s pro se submission also took issue with the propriety of the
obstruction of justice enhancement. In his view, application of the enhancement
constituted a breach of the plea agreement. Because it is the District Court that
determines the applicable Guideline range, the government did not breach the plea
agreement. Indeed, the plea agreement advised that “[t]he sentence to be imposed
. . . is within the sole discretion of the sentencing judge” and that the prosecution
was not making “any representation or promise as to what guideline range may be
found by the sentencing judge.”
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For the reasons set forth above, we will affirm the judgment of the District
Court. Because our own independent review of the record fails to reveal any
nonfrivolous issues for appeal, we will grant counsel’s motion to withdraw and
affirm the judgment of the District Court. We certify that the issues presented in
the appeal lack legal merit and thus do not require the filing of a petition for writ of
certiorari with the Supreme Court. 3d Cir. L.A.R. 109.2(b).
6