United States v. Martinez

54 F. App'x 761
CourtCourt of Appeals for the Third Circuit
DecidedDecember 13, 2002
DocketNo. 02-2192
StatusPublished

This text of 54 F. App'x 761 (United States v. Martinez) 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. Martinez, 54 F. App'x 761 (3d Cir. 2002).

Opinion

OPINION

GARTH, Circuit Judge.

This case involves the appeal of Dontavier L. Martinez from his judgment of conviction and sentence for one count of bank robbery in violation of 18 U.S.C. §§ 2113(a) and 2. Martinez’s counsel, Mark W. Catanzaro, Esq., appointed under the Criminal Justice Act, has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), expressing his belief that there were no non-frivolous issues presented for our review, and has moved to withdraw as counsel. Counsel’s Anders brief is inadequate.1 [763]*763However, because our review indicates that the frivolousness of the appeal is patent, we will affirm the judgment of the district court and will grant the motion of Martinez’s counsel to withdraw.

I.

Because we write solely for the benefit of the parties, we recount the facts and the procedural history of the case only as they are relevant to the following discussion.

A grand jury indicted Martinez on two counts of bank robbery of federally-insured banks in New Jersey. It was charged that each robbery violated 18 U.S.C. §§ 2113(a) and 2. The robberies took place on October 2 and October 31, 2000, respectively. The district court denied Martinez’s pre-trial motion to suppress certain statements he had made to FBI agents.

Three days after the start of trial, Martinez and the Government reached an unconditional plea agreement. Pursuant to this agreement, Martinez pled guilty to the second count of the indictment, pertaining to the October 31 robbery; and the Government moved at sentencing for dismissal of the first count, pertaining to the October 2 robbery. The district court dismissed the first count, and on the second count sentenced Martinez to a 70-month prison term, with three years of supervised release to follow, and ordered Martinez to pay a fine of $2500 and make restitution.

Martinez’s timely appeal followed.

II.

We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291. Martinez’s counsel filed an Anders brief, expressing his belief that there were no non-frivolous issues presented for our review. In the one-page argument section of his Anders brief, Martinez’s counsel notes that he “fails to see any defects in the plea agreement or the entry of the guilty plea,” Anders Br. at 9, that “Martinez was treated fairly in an application of the Guidelines as he was sentenced within the guideline range for the offense charged,” id., and that “the court declined to grant the government’s request for an upward adjustment.” Id.

In reviewing an Anders brief, we must determine “(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). To be adequate under Anders, 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.” Id. The Anders brief here, as we have stated, is inadequate. Though counsel has provided an appendix containing references to the record, the argument section of his brief consists of just one single page and is bereft of citations to legal authority. Cf. id. (finding Anders brief inadequate where “counsel’s analysis of the merits of the potential appealable issues constituted two pages,” and “[w]ith regard to sentencing, counsel’s examination cites no case law”).

In United States v. Marvin, 211 F.3d 778 (3d Cir.2000), we explained that “except in those cases in which frivolousness is patent, we will reject briefs ... where [764]*764we are not satisfied that counsel adequately attempted to uncover the best arguments for his or her client.” Id. at 781. Despite the inadequacy of the Anders brief filed by Martinez’s counsel here, upon review of Martinez’s contentions in his own pro sé brief, none of which are mentioned in the Anders brief filed by counsel, as well as the Government’s helpful brief, we conclude that the frivolousness of Martinez’s appeal is patent, and thus we will affirm the judgment of the district court.

Martinez raises four arguments in his pro se brief: (1) that the district court should not have suppressed statements he made to investigating FBI agents; (2) that the district court erred in finding during the sentencing phase that Martinez participated in the October 2 robbery (for which charges were dismissed); (3) that the district court was biased against him and in favor of the Government; and (4) that he received ineffective assistance of counsel. All of these arguments but the last are patently frivolous, and the ineffective assistance claim is more properly brought in a collateral proceeding. See United States v. Haywood, 155 F.3d 674, 678 (3d Cir. 1998).

First, Martinez claims that the district court should have suppressed statements he made to FBI agents concerning his participation in the October 2 robbery. When Martinez entered an unconditional plea of guilty, however, he waived his right to challenge the district court’s denial of his motion to suppress the statements. See, e.g., Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) (“[wjhen a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea”). Thus, any challenge to the district court’s determination on appeal would be frivolous.

Second, Martinez claims that the district court erred in finding, for purposes of sentencing, that he participated in the robbery committed on October 2, 2000. Even though the count charging Martinez with participation in the October 2 robbery had been dismissed, the Government properly notes that the Sentencing Guidelines explicitly permit consideration of Martinez’s involvement in the October 2 robbery in determining that he should be sentenced at the higher end of the Guidelines range. See Appellee’s Br. at 13 (citing U.S.S.G. § 1B1.4 Background). “Sentencing findings are reviewed for clear error. The burden of proof in the District Court is on the government, and the standard of proof is a preponderance of rehable evidence.” United States v. Tiller,

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
Tollett v. Henderson
411 U.S. 258 (Supreme Court, 1973)
Liteky v. United States
510 U.S. 540 (Supreme Court, 1994)
United States v. Marva Headley, A/K/A "Brenda"
923 F.2d 1079 (Third Circuit, 1991)
United States v. Donald Wayne Marvin
211 F.3d 778 (Third Circuit, 2000)
United States v. Gibbs
190 F.3d 188 (Third Circuit, 1999)

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