United States of America v. Carlos Rodriguez-Noriega

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 11-2587
_____________
UNITED STATES OF AMERICA
v.
CARLOS RODRIGUEZ-NORIEGA,
Appellant
______________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Crim. No. 11-cr-00085-001)
District Judge: Honorable Renee M. Bumb
____________
Submitted Under Third Circuit LAR 34.1(a)
April 16, 2012
____________
Before: VANASKIE, ALDISERT and BARRY, Circuit Judges
(Opinion Filed: May 11, 2012)
____________
OPINION
____________
BARRY, Circuit Judge
Defendant Carlos Rodriguez-Noriega (―Rodriguez‖) pleaded guilty pursuant to a
plea agreement, waiving his right to appeal a sentence within or below an agreed-upon
guideline range. The District Court sentenced Rodriguez within this range.

-- 1 of 5 --

2
Notwithstanding his waiver, Rodriguez appealed. His counsel, J. Michael Farrell, has
moved to withdraw and has filed 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 nonfrivolous issues
on appeal. We will affirm the judgment of sentence and grant the motion to withdraw.
I. BACKGROUND
An undercover investigation by the Drug Enforcement Agency resulted in
Rodriguez‘s arrest and plea of guilty to conspiracy to possess with intent to distribute 500
grams or more of cocaine, in violation of 21 U.S.C. § 846. As part of the plea agreement,
Rodriguez waived his right to appeal a sentence within or below the guideline range
resulting from a total offense level of 25. He reserved the right to challenge the District
Court‘s determination of his criminal history category.
On February 9, 2011, the District Court conducted a thorough plea colloquy with
the assistance of an interpreter. It determined, among other things, that Rodriguez was
not under the influence of drugs, alcohol, or a debilitating mental condition, and that he
had reviewed the charges and plea agreement with counsel, aided by an interpreter. The
Court advised Rodriguez that the stipulations in the plea agreement, as well as the
sentencing guidelines, were not binding on the Court, and that he could be sentenced
anywhere from the mandatory minimum of 5 years to the maximum sentence of 40 years.
Finally, the Court informed Rodriguez that, by pleading guilty, he would lose important
rights, and explained the waiver of his right to appeal. Rodriguez stated that he
understood all of this and provided a factual basis for his plea. The Court accepted the

-- 2 of 5 --

3
plea after finding that it was knowing and voluntary.
Sentencing took place on June 2, 2011. Defense counsel argued that Rodriguez
was entitled to a downward adjustment of 2 levels under U.S.S.G. § 3B1.2(b) for his
minor role in the offense, and to a downward variance for the same reason. Neither the
plea agreement nor the PSR had mentioned § 3B1.2(b). In an abundance of caution,
however, the District Court considered Rodriguez‘s argument for an adjustment under §
3B1.2(b) and a variance, denying both because Rodriguez was not merely a minor
courier. Rather, the Court concluded, Rodriguez had an ongoing employment
relationship with the main trafficker, he was aware of the scope of the conspiracy, he
transported a substantial amount of drugs, and his presence at meetings made it appear
that he was protecting the main trafficker. The Court ultimately agreed with the PSR‘s
application of the safety valve provision of U.S.S.G. § 5C1.2 and with its calculation of
the guideline range as 57 to 71 months, based on an offense level of 25 and criminal
history category of I. After considering the 18 U.S.C. § 3553(a) factors, the Court stated
that the case ―cries out for a guideline sentence . . . [and] that anything other than a
guideline sentence really does defeat all of the purposes of [§] 3553.‖ (App. 127a). It
then sentenced Rodriguez to 57 months‘ imprisonment and 5 years‘ supervised release—
the bottom of the applicable range. This appeal followed.
II. ANALYSIS1
1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

-- 3 of 5 --

4
Under Anders, 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. at 744; see also Third
Circuit L.A.R. 109.2(a). ―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, counsel must ―satisfy the court that [he] has
thoroughly examined the record in search of appealable issues, and . . . explain why the
issues are frivolous.‖ Id. He need not address every possible claim but must at least
make a ―conscientious examination.‖ Id. (internal quotation omitted). Regarding the
second requirement, the Court should generally confine its independent review to those
portions of the record identified by an adequate Anders brief.2 See id. at 301. An appeal
―is frivolous where none of the legal points are arguable on their merits.‖ Id. (internal
quotation omitted).
Counsel has satisfied his obligation by conscientiously reviewing the record for
any appealable errors, finding none. He summarized the plea and sentencing hearings in
detail, and concluded that the appellate waiver precludes any appeal. Even if it did not,
2 Rodriguez did not file a pro se brief.

-- 4 of 5 --

5
he continued, the sole possible issue—the District Court‘s rejection of Rodriguez‘s
argument for a downward adjustment or variance based on his allegedly minor role in the
conspiracy—lacks merit.
Our independent review confirms this conclusion. The District Court conducted a
thorough plea allocution that complied with the requirements of Rule 11(b). See United
States v. Schweitzer, 454 F.3d 197, 202–03 (3d Cir. 2006). The record supports its
finding that Rodriguez‘s guilty plea was knowing, voluntary, and supported by a
sufficient factual basis. The Court explained to Rodriguez that, by pleading guilty, he
would waive his right to appeal a sentence within the guideline range based on an offense
level of 25. He replied that he understood. Rodriguez was sentenced within this
guideline range. Moreover, because the Court applied a criminal history category of I,
Rodriguez has no basis to challenge its determination of his criminal history category—
the only other issue his waiver preserved for appeal. Finally, there are no ―‗unusual
circumstances‘‖ here that require invalidating the waiver to prevent a miscarriage of
justice. United States v. Jackson, 523 F.3d 234, 244 (3d Cir. 2008) (quoting United
States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001)).
IV. CONCLUSION
Because we find no arguable merit to the appeal, we will grant counsel‘s motion to
withdraw and affirm the judgment of sentence. Under Third Circuit L.A.R. 109.2(b), the
issues presented in this appeal lack legal merit for purposes of counsel filing a petition for
a writ of certiorari to the Supreme Court of the United States.

-- 5 of 5 --