United States v. Felix

314 F. App'x 430
CourtCourt of Appeals for the Third Circuit
DecidedSeptember 9, 2008
Docket05-1988
StatusUnpublished

This text of 314 F. App'x 430 (United States v. Felix) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Felix, 314 F. App'x 430 (3d Cir. 2008).

Opinion

OPINION

McKEE, Circuit Judge.

Julio Felix appeals the district court’s judgment of conviction and sentence. Felix’s counsel has filed a motion to withdraw as counsel and submitted a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that Felix’s appeal raises no nonfrivo-lous issues. Felix has also filed a pro se brief. For the reasons that follow, we will affirm.

I.

Because we write primarily for the parties, we note only the facts and procedural history that are helpful to our brief discussion.

Under Anders, if, after review of the record and a conscientious investigation, counsel is convinced that the appeal presents no issue of arguable merit, he/she may file a brief referring to anything in the record that could conceivably support an appeal, and then ask leave to withdraw. 386 U.S. at 741-42, 87 S.Ct. 1396. To satisfy the Anders requirement, counsel must “satisfy the court that he or she has thoroughly scoured the record in search of appealable issues” and then “explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000) (citation omitted). We have stated that:

The Court’s inquiry when counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled [Third Circuit LAR 109.2’s] requirements; and (2) whether an independent review of the record presents any non-frivolous issues.

United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). We exercise plenary review in determining whether an appeal is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).

II.

In his Anders brief, counsel considered: (1) the district court’s denial of the motion to produce grand jury testimony; (2) the district court’s denial of the motion to produce Brady material; (3) the district court’s denial of the motion for information relating to Felix’s identification; (4) the district court’s denial of the motion to identify cooperating witnesses or provide their photographs; (5) the district court’s denial of the suppression motion; (6) the district court’s denial of the motion for production of statements; (7) the district court’s reservation of a decision on Felix’s suppression motion; and (8) the district court’s denial of the motion challenging the admissibility of prior convictions. Counsel concluded that none of these rulings raised meritorious issues for appeal. We agree.

Counsel also considered possible sentencing issues. Felix had a Total Offense Level 32 and a Criminal History Category I, yielding a Guideline range of 121 to 151 months. However, a mandatory minimum sentence of 10 years applied. 21 U.S.C. § 841(a)(1)(A). The government argued for a sentence toward the upper Guideline range. However, the district court, considered that Felix was a first time offender at age 49 and rejected the government’s request because it was excessive. The court also expressed the view that the 10 year mandatory minimum was excessive as applied to Felix. However, the court had no authority to impose anything less, and therefore sentenced Felix to a period of incarceration of 120 months. That was *432 one month less than the advisory Guideline range. See, Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007).

Felix has requested that counsel raise an meitective assistance of counsel claim as to both his original lawyer and his appointed trial counsel. However, current counsel correctly notes that such claims are not appropriate for a direct appeal. Rather, they must be raised in a collateral habeas proceeding. See United States v. Jake, 281 F.3d 123, 132 n. 7 (3d Cir.2002) (“[W]e have stated repeatedly that Sixth Amendment claims of ineffective assistance of counsel should ordinarily be raised in a collateral proceeding pursuant to 28 U.S.C. § 2255 rather than on direct appeal.”) (citing cases).

III.

As noted, Felix has filed his own pro se brief raising five issues. First, Felix contends that the government, in its opening and summation, improperly vouched for the credibility of Hugo Agude-lo, a key cooperating witness. Felix claims that in summation and again in rebuttal, the government argued that the jury should not believe Agudelo’s testimony because telling the truth was in his self-interest under his plea agreement. In its rebuttal summation, the government contended that phone records were “hard to cross [examine],” thereby corroborating Agudelo. Supp.App. 65. Felix never objected to these comments. Therefore, he has to demonstrate plain error. United States v. Richards, 241 F.3d 335, 341-42 (3d Cir.2001).

A prosecutor’s comments constitute improper vouching only if “the prosecutor ... assure[s] the jury that the testimony of a Government witness is credible!,]” and “[if] this assurance [is] based on either the prosecutor’s personal knowledge or other information not contained in the record.” United States v. Harris, 471 F.3d 507, 512 (3d Cir.2006). Here, the government did neither. Rather, the prosecutor used an appropriate argument to suggest that Agudelo was telling the truth. United States v. Lore, 430 F.3d 190, 212 (3d Cir.2005) (rejecting claim that argument constituted improper vouching where “throughout the comments ... the prosecutor referenced the corroborating evidence of record.”). It was also proper for the government to argue that a cooperating witness’s plea agreement provides an incentive for truthful testimony, so long as the cooperating witness has so testified or the record otherwise supports the argument. United States v. Saada, 212 F.3d 210, 225 (3d Cir.2000) (“Because the prosecutor’s comments as to why [the cooperators] had an incentive to tell the truth were based on th[e] evidence, they constituted proper argument and not improper vouching.”). Thus, Felix’s first claim is frivolous.

Second, Felix contends that the district court abused its discretion when it refused to permit him to again raise his motion to suppress when his new counsel was appointed.

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
Morris v. Slappy
461 U.S. 1 (Supreme Court, 1983)
Penson v. Ohio
488 U.S. 75 (Supreme Court, 1988)
Rita v. United States
551 U.S. 338 (Supreme Court, 2007)
United States v. Donald Wayne Marvin
211 F.3d 778 (Third Circuit, 2000)
United States v. Don Richards
241 F.3d 335 (Third Circuit, 2001)
United States v. Tony R. Jake, A/K/A Smiley
281 F.3d 123 (Third Circuit, 2002)
United States v. William Harris
471 F.3d 507 (Third Circuit, 2006)
United States v. Lore
430 F.3d 190 (Third Circuit, 2005)

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Bluebook (online)
314 F. App'x 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-felix-ca3-2008.