NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 23-3267 ____________
UNITED STATES OF AMERICA
v.
JOSE ESTEBAN MERCADO-COLON, Appellant ____________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Crim. No. 3:22-cr-00026-01) District Judge: Honorable Robert D. Mariani ____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) February 18, 2025 ____________
Before: CHAGARES, Chief Judge, BIBAS, and RENDELL, Circuit Judges
(Filed: February 20, 2025) ____________
OPINION * ____________
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Chief Judge.
Jose Mercado-Colon was sentenced to 51 months of imprisonment after he pled
guilty to assault with a dangerous weapon. His attorney has filed a motion to withdraw
under Anders v. California, 386 U.S. 738 (1967). For the reasons below, we will grant
the motion and affirm the judgment of sentence.
I.
We write primarily for the parties and so recite only those facts pertinent to our
decision. Mercado-Colon slashed a fellow inmate multiple times with a sharpened object
after that inmate punched him, and the inmate lost his left eye.
A grand jury returned an indictment on January 25, 2022, which charged
Mercado-Colon with (1) assault with a dangerous weapon, (2) assault resulting in serious
bodily injury, and (3) possession of contraband in prison. Mercado-Colon entered into a
plea agreement pursuant to which he pled guilty to assault with a dangerous weapon in
violation of 18 U.S.C. § 113(a)(3), which carries a maximum term of imprisonment of ten
years. Mercado-Colon was represented by counsel and attested that he was satisfied with
defense counsel’s representation in the plea agreement.
The recommended term of imprisonment pursuant to the United States Sentencing
Guidelines (“Guidelines”) was 77 to 96 months. The presentence investigation report
(“PSR”) calculated the applicable criminal history category to be category VI because
Mercado-Colon was a career offender. It further noted that, for each of his criminal
convictions as an adult, Mercado-Colon was either represented by counsel or waived his
right to counsel. The plea agreement stipulated that the applicable offense level was 21,
2 and the victim’s conduct warranted a departure pursuant to § 5K2.10. 1 The parties
further agreed that a modified sentencing range, from six months below the bottom of the
applicable Guidelines range to the bottom of the Guidelines range, was appropriate given
“the defendant’s agreement to a fast-track resolution of this case.” Appendix 23.
Accordingly, the final, recommended Guidelines range was 51 to 57 months.
In addition to the sentencing submissions filed by defense counsel, Mercado-
Colon filed a pro se objection to the PSR’s criminal history calculation because the PSR
failed to specify the charges for which he was represented by counsel. At the sentencing
hearing, the District Court noted that a PSR issued in conjunction with a prior conviction
indicated that he was represented by counsel for earlier convictions. The District Court
sentenced Mercado-Colon to a term of imprisonment of 51 months.
Mercado-Colon filed a pro se motion for reconsideration on the grounds that
(1) counsel was ineffective because he did not argue that the PSR incorrectly calculated
his criminal history and (2) his plea was not knowing or voluntary because the hearing
was not conducted in his native language of Spanish. He further requested to be assigned
a Spanish-speaking attorney and judge. The District Court dismissed his motion for lack
of jurisdiction.
Mercado-Colon timely appealed. On January 8, 2024, he filed a pro se amended
notice of appeal and a motion for a change of counsel. Mercado-Colon asserts that (1) he
1 The plea agreement initially incorrectly calculated the offense level to be 22, and the parties orally amended the calculation to be an offense level of 21 at the change of plea hearing.
3 did not enter a voluntary and informed guilty plea because he did not have access to
adequate translation services; (2) the criminal history calculation erroneously included his
prior convictions without specifying that he was represented by counsel; and (3) his
counsel was ineffective.
We granted his motion for new counsel, and Mercado-Colon’s new counsel now
seeks to withdraw because there is no viable basis for appeal. The Government agrees.
II. 2
Under Anders, court-appointed counsel may — after finding any appeal “to be
wholly frivolous” after careful examination of the record — file a brief so “advis[ing] the
court and request[ing] permission to withdraw.” 386 U.S. at 744. This Court must
consider “(1) whether counsel adequately fulfilled the requirements of Third Circuit
Local Appellate Rule 109.2(a), and (2) whether an independent review of the record
presents any nonfrivolous issues.” Simon v. Gov’t of Virgin Islands, 679 F.3d 109, 114
(3d Cir. 2012) (cleaned up). “We exercise plenary review to determine whether there are
any such issues” and review factual findings for clear error. Id.
The withdrawing counsel’s brief must “satisfy the court that counsel has
thoroughly examined the record in search of appealable issues” and “explain why the
issues are frivolous.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). An
appeal is frivolous if “the appeal lacks any basis in law or fact.” McCoy v. Ct. of
Appeals of Wis., Dist. 1, 486 U.S. 429, 438 n.10 (1988). If “the Anders brief initially
2 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction to pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
4 appears adequate on its face,” the second step of our inquiry is guided “by the Anders
brief itself.” Youla, 241 F.3d at 301 (quotation omitted). “[A] complete scouring of the
record” is unnecessary. Id.
Because the Anders brief in this case is facially adequate, we confine our review
to the issues identified by the brief. Mercado-Colon’s counsel has identified two areas
for review: (1) whether the use of an interpreter during the change of plea hearing was
proper and (2) whether the District Court correctly calculated Mercado-Colon’s criminal
history and imposed a reasonable sentence. Mercado-Colon did not file a pro se brief in
response.
First, the District Court provided Mercado-Colon with adequate translation
services by a sworn interpreter. We have held that translation services are sufficient to
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 23-3267 ____________
UNITED STATES OF AMERICA
v.
JOSE ESTEBAN MERCADO-COLON, Appellant ____________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Crim. No. 3:22-cr-00026-01) District Judge: Honorable Robert D. Mariani ____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) February 18, 2025 ____________
Before: CHAGARES, Chief Judge, BIBAS, and RENDELL, Circuit Judges
(Filed: February 20, 2025) ____________
OPINION * ____________
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Chief Judge.
Jose Mercado-Colon was sentenced to 51 months of imprisonment after he pled
guilty to assault with a dangerous weapon. His attorney has filed a motion to withdraw
under Anders v. California, 386 U.S. 738 (1967). For the reasons below, we will grant
the motion and affirm the judgment of sentence.
I.
We write primarily for the parties and so recite only those facts pertinent to our
decision. Mercado-Colon slashed a fellow inmate multiple times with a sharpened object
after that inmate punched him, and the inmate lost his left eye.
A grand jury returned an indictment on January 25, 2022, which charged
Mercado-Colon with (1) assault with a dangerous weapon, (2) assault resulting in serious
bodily injury, and (3) possession of contraband in prison. Mercado-Colon entered into a
plea agreement pursuant to which he pled guilty to assault with a dangerous weapon in
violation of 18 U.S.C. § 113(a)(3), which carries a maximum term of imprisonment of ten
years. Mercado-Colon was represented by counsel and attested that he was satisfied with
defense counsel’s representation in the plea agreement.
The recommended term of imprisonment pursuant to the United States Sentencing
Guidelines (“Guidelines”) was 77 to 96 months. The presentence investigation report
(“PSR”) calculated the applicable criminal history category to be category VI because
Mercado-Colon was a career offender. It further noted that, for each of his criminal
convictions as an adult, Mercado-Colon was either represented by counsel or waived his
right to counsel. The plea agreement stipulated that the applicable offense level was 21,
2 and the victim’s conduct warranted a departure pursuant to § 5K2.10. 1 The parties
further agreed that a modified sentencing range, from six months below the bottom of the
applicable Guidelines range to the bottom of the Guidelines range, was appropriate given
“the defendant’s agreement to a fast-track resolution of this case.” Appendix 23.
Accordingly, the final, recommended Guidelines range was 51 to 57 months.
In addition to the sentencing submissions filed by defense counsel, Mercado-
Colon filed a pro se objection to the PSR’s criminal history calculation because the PSR
failed to specify the charges for which he was represented by counsel. At the sentencing
hearing, the District Court noted that a PSR issued in conjunction with a prior conviction
indicated that he was represented by counsel for earlier convictions. The District Court
sentenced Mercado-Colon to a term of imprisonment of 51 months.
Mercado-Colon filed a pro se motion for reconsideration on the grounds that
(1) counsel was ineffective because he did not argue that the PSR incorrectly calculated
his criminal history and (2) his plea was not knowing or voluntary because the hearing
was not conducted in his native language of Spanish. He further requested to be assigned
a Spanish-speaking attorney and judge. The District Court dismissed his motion for lack
of jurisdiction.
Mercado-Colon timely appealed. On January 8, 2024, he filed a pro se amended
notice of appeal and a motion for a change of counsel. Mercado-Colon asserts that (1) he
1 The plea agreement initially incorrectly calculated the offense level to be 22, and the parties orally amended the calculation to be an offense level of 21 at the change of plea hearing.
3 did not enter a voluntary and informed guilty plea because he did not have access to
adequate translation services; (2) the criminal history calculation erroneously included his
prior convictions without specifying that he was represented by counsel; and (3) his
counsel was ineffective.
We granted his motion for new counsel, and Mercado-Colon’s new counsel now
seeks to withdraw because there is no viable basis for appeal. The Government agrees.
II. 2
Under Anders, court-appointed counsel may — after finding any appeal “to be
wholly frivolous” after careful examination of the record — file a brief so “advis[ing] the
court and request[ing] permission to withdraw.” 386 U.S. at 744. This Court must
consider “(1) whether counsel adequately fulfilled the requirements of Third Circuit
Local Appellate Rule 109.2(a), and (2) whether an independent review of the record
presents any nonfrivolous issues.” Simon v. Gov’t of Virgin Islands, 679 F.3d 109, 114
(3d Cir. 2012) (cleaned up). “We exercise plenary review to determine whether there are
any such issues” and review factual findings for clear error. Id.
The withdrawing counsel’s brief must “satisfy the court that counsel has
thoroughly examined the record in search of appealable issues” and “explain why the
issues are frivolous.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). An
appeal is frivolous if “the appeal lacks any basis in law or fact.” McCoy v. Ct. of
Appeals of Wis., Dist. 1, 486 U.S. 429, 438 n.10 (1988). If “the Anders brief initially
2 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction to pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
4 appears adequate on its face,” the second step of our inquiry is guided “by the Anders
brief itself.” Youla, 241 F.3d at 301 (quotation omitted). “[A] complete scouring of the
record” is unnecessary. Id.
Because the Anders brief in this case is facially adequate, we confine our review
to the issues identified by the brief. Mercado-Colon’s counsel has identified two areas
for review: (1) whether the use of an interpreter during the change of plea hearing was
proper and (2) whether the District Court correctly calculated Mercado-Colon’s criminal
history and imposed a reasonable sentence. Mercado-Colon did not file a pro se brief in
response.
First, the District Court provided Mercado-Colon with adequate translation
services by a sworn interpreter. We have held that translation services are sufficient to
address any language barrier, and a Spanish-speaking defendant has no right to a
Spanish-speaking attorney. See Gov’t of Virgin Islands v. Martinez, 847 F.2d 125, 127
(3d Cir. 1988). At the outset of the change of plea hearing, Mercado-Colon affirmed that
he could understand the proceedings and answer the District Court’s questions
intelligently. He further confirmed that an interpreter had read the plea agreement to him
in Spanish and was available to assist Mercado-Colon in discussing any questions
regarding the agreement with defense counsel. He then listened to a translated summary
of the plea agreement and stated that he understood the terms of the agreement and had
no questions. And though there were brief audio issues that interfered with the
translation, the District Court repeated itself and had the transcript translated back to the
defendant before proceeding to ensure that Mercado-Colon was able to follow along.
5 Second, the District Court imposed a reasonable sentence. We review the
reasonableness of a sentence for abuse of discretion and will affirm unless no reasonable
court would have imposed such a sentence. United States v. Tomko, 562 F.3d 558, 567–
68 (3d Cir. 2009) (en banc). A sentencing court must follow three procedural steps:
(1) calculate the appropriate Guidelines range; (2) rule on any departure motions; and
(3) exercise discretion by considering the relevant 18 U.S.C. § 3553(a) factors. See
United States v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc). We discern
no procedural or substantive error here. The District Court considered submissions and
argument from the government, defense counsel, and Mercado-Colon. It correctly
calculated the Guidelines range; granted the motion for a departure based on the victim’s
conduct; and considered the § 3553(a) factors. The District Court then imposed a
sentence of 51 months, well below the statutory maximum of ten years. That sentence
was reasonable in light of the severe physical harm that Mercado-Colon inflicted during
the assault.
Although Mercado-Colon argued that the PSR did not specify for which charges
he was represented by counsel, the PSR clearly stated that he either had counsel or
waived counsel for all previous adult convictions. Mercado-Colon does not allege that he
was denied the right to counsel as part of any convictions, and thus, “the presumption of
regularity attaches to the conviction[s].” United States v. Jones, 332 F.3d 688, 697 (3d
Cir. 2003). Even if the record were silent as to whether his Sixth Amendment right to
counsel was upheld as part of his prior convictions, which it is not, we would not read
such silence to imply that Mercado-Colon was denied his right to counsel. See id.
6 Finally, we decline to review Mercado-Colon’s claim that his counsel provided
ineffective assistance. We entertain claims of ineffective assistance of counsel on direct
review only where “the record is sufficient to allow determination of ineffective
assistance of counsel” so that “an evidentiary hearing to develop the facts is not needed.”
United States v. McLaughlin, 386 F.3d 547, 556 (3d Cir. 2004) (quoting United States v.
Headley, 923 F.2d 1079, 1083 (3d Cir. 1991)). That is not the case here. Mercado-Colon
may, however, pursue his ineffective assistance of counsel claim and seek to develop the
record in the District Court in a motion made pursuant to 28 U.S.C. § 2255.
In sum, we conclude that counsel has fulfilled the requirements of Anders by
making a thorough examination of the record. We have independently reviewed the
record and do not identify any non-frivolous issues on direct appeal.
III.
For the foregoing reasons, we will grant counsel’s motion to withdraw and will
affirm the District Court’s judgment of sentence. In addition, we certify that the issues
presented lack legal merit and that counsel is not required to file a petition for writ of
certiorari with the Supreme Court. 3d Cir. L.A.R. 109.2(b) (2011).