United States v. Flavio Dilone

544 F. App'x 103
CourtCourt of Appeals for the Third Circuit
DecidedNovember 15, 2013
Docket13-1082
StatusUnpublished

This text of 544 F. App'x 103 (United States v. Flavio Dilone) 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. Flavio Dilone, 544 F. App'x 103 (3d Cir. 2013).

Opinion

OPINION

HARDIMAN, Circuit Judge.

Flavio Dilone appeals his judgment of sentence after pleading guilty to three federal crimes. Counsel for Dilone has moved for permission to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We will grant counsel’s motion and affirm the judgment of the District Court.

I

In November 2009, Dilone, a native of the Dominican Republic who had been deported previously, walked across the border undetected from Mexico to Laredo, Texas. In June 2011, U.S. Immigration and Customs Enforcement (ICE) agents received confidential information that Di-lone had illegally reentered the United States and was the ringleader of a heroin organization operating in North Philadelphia.

On July 12, 2011, ICE agents arrested Dilone and seized a significant quantity of heroin. At the time of his arrest, Dilone identified himself as Jorge Emmanuel Ro-lon-Marquez and provided agents with a Puerto Rican birth certificate, a United States Social Security card, and a Pennsylvania identification card in that name. After waiving his Miranda rights, Dilone admitted that he had purchased the Social Security card and the birth certificate, and had used these documents to obtain the Pennsylvania identification card. He also stated that he knew the Social Security card was genuine and belonged to a real person, noting that he would not purchase “fake stuff.”

After plea negotiations in which the Government agreed not to file charges against him for heroin distribution, Dilone *105 entered an unconditional guilty plea to three counts: (1) unlawful reentry into the United States, in violation of 8 U.S.C. § 1326; (2) misuse of a Social Security card, in violation of 42 U.S.C. § 408(a)(7)(B); and (3) aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(l) and (c)(ll). At his guilty plea colloquy on August 23, 2012, Dilone stated that he had received a copy of the indictment and understood it, and that his counsel had explained to him his rights and the nature of the charges against him. The prosecutor then read into the record the factual basis of the plea, which included Dilone’s post-arrest statement that he knew the Social Security card was a genuine document. When asked whether this information was accurate, Dilone concurred but noted he had not thought “one way or the other whether [the card] was real or not.” He admitted, however, that he had no reason to believe the Social Security card was not genuine.

The Probation Office’s Presentence Investigation Report (PSR) recommended an advisory range under the United States Sentencing Guidelines (USSG) of 42 to 48 months’ imprisonment, based in part on Dilone’s criminal history. Dilone had two prior convictions relevant to this appeal. In June 1994, he was charged in New York with two counts of criminal possession of a weapon in violation of New York Penal Law (N.Y.P.L.) §§ 265.03 and 265.02(4). He was released on bail but failed to appear in court in July 1995. Subsequently, he was charged with one count of bail jumping in violation of NYPL § 215.56. He was convicted of both offenses in January 2000 and sentenced to one to three years’ imprisonment for criminal weapons possession and a concurrent one-year term for bail jumping. The PSR assigned Dilone three points for his criminal weapons conviction and two points for his bail jumping conviction. Adopting the PSR’s recommendations, the District Court sentenced Dilone to 42 months’ imprisonment, a one-year term of supervised release, and $1,300 in fines.

Dilone filed this timely appeal. His counsel then moved to withdraw pursuant to Anders. Dilone did not file a pro se brief.

II

When counsel files a motion pursuant to Anders, as counsel for Dilone has done here, we determine whether: (1) counsel has adequately fulfilled the Anders requirements; and (2) an independent review of the record presents any non-frivolous issues. United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001).

To meet the first prong, appointed counsel must examine the record, conclude that there are no non-frivolous issues for review, and request permission to withdraw. Counsel must accompany a motion to withdraw with “a brief referring to anything in the record that might arguably support the appeal.” Anders, 386 U.S. at 744, 87 S.Ct. 1396. Dilone’s counsel identified two potential grounds for appeal and discussed why they lack merit: (1) Dilone’s guilty plea to aggravated identity theft had a factual basis and thus was properly accepted by the District Court; and (2) Dilone’s bail jumping conviction under New York state law was properly counted in determining his criminal history category.

We find that counsel’s thorough discussion of the reasons as to why no appealable issue exists meets the requirements of An-ders’ s first prong. As we explain below, our independent review of the record confirms counsel’s conclusion that there are no meritorious issues for appeal.

III

The District Court’s finding of a factual basis for a plea is reviewed for abuse of *106 discretion. United States v. Cefaratti, 221 F.3d 502, 509 (3d Cir.2000). In sentencing appeals such as this one, “[w]e review the District Court’s legal interpretations and applications of the [Sentencing Guidelines] de novo” and its factual findings for clear error. United States v. Cicirello, 301 F.3d 135, 137 (3d Cir.2002).

A

Dilone claims that the District Court did not have sufficient factual basis to accept his guilty plea to the aggravated identity theft charge. See Cefaratti, 221 F.3d at 509 (noting that Fed.R.Crim.P. 11(f) requires “notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment ... without making such inquiry as shall satisfy it that there is a factual basis for the plea”). The court’s inquiry to this end may consider “the defendant’s own admissions, the government’s proffer of evidence, the presentence report, or ‘whatever means is appropriate in a specific case — so long as the factual basis is put on the record.’ ” Id. (citing United States v. Smith, 160 F.3d 117, 121 (2d Cir.1998)). “The court ‘need not be convinced beyond a reasonable doubt that an accused is guilty.

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
Flores-Figueroa v. United States
556 U.S. 646 (Supreme Court, 2009)
United States v. Frank R. Alber
56 F.3d 1106 (Ninth Circuit, 1995)
United States v. Decaress Smith
160 F.3d 117 (Second Circuit, 1998)
United States v. Frank Cefaratti
221 F.3d 502 (Third Circuit, 2000)
United States v. Michael Cicirello
301 F.3d 135 (Third Circuit, 2002)

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