United States of America v. GUI FENG CHEN aka FONG aka AH FONG aka LA TI KOY GUI FENG CHEN

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 00-2361
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UNITED STATES OF AMERICA
v.
GUI FENG CHEN
aka FONG
aka AH FONG
aka LA TI KOY
GUI FENG CHEN,
Appellant
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Appeal from the United States District Court
for the District of New Jersey
(D.C. Crim. No. 98-cr-00746)
District Judge: Honorable John C. Lifland
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Submitted Under Third Circuit LAR 34.1(a)
February 11, 2002
Before: MANSMANN, McKEE and BARRY, Circuit Judges.
(Filed: February 15, 2002)
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MEMORANDUM OPINION OF THE COURT
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MANSMANN, Circuit Judge.
Gui Feng Chen pled guilty, pursuant to a plea agreement, to one count of
conspiring to smuggle aliens into and within the United States in violation of 8 U.S.C.
1324 and 18 U.S.C. 371, and one count of kidnaping in connection with alien
smuggling in violation of 18 U.S.C. 1201(a), (c) and 2. The District Court sentenced
Chen to a 60-month term of imprisonment on the conspiracy count and a 108-month term
of imprisonment on the kidnaping count, the terms to run concurrently. Chen filed a
timely notice of appeal, but his counsel seeks leave to withdraw under Anders v.
California, 386 U.S. 738 (1967), claiming that Chen’s appeal is wholly frivolous.
Pursuant to Third Circuit Local Appellate Rule 109.2(a), Chen filed a pro se
supplemental brief.
We conclude that counsel’s Anders brief satisfies the requirements outlined
in Smith v. Robbins, 528 U.S. 259, 285 (2000), and United States v. Marvin, 211 F.3d
778, 780-81 (3d Cir. 2000). Because counsel for Chen, having "thoroughly reviewed the
transcripts in this matter as well as the applicable case law," was unable to identify any
issue of even arguable merit, and because we do not find merit in either of the issues
raised in Chen’s pro se submission, we will grant counsel’s motion to withdraw and will

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affirm the judgment in a criminal case.
I.
The facts and procedural history underlying this matter are well-known to
the parties. Accordingly, we turn to the substance of counsel’s Anders brief and to the
issues raised by Chen.
Because Chen pled guilty pursuant to a plea agreement, Chen’s attorney
focuses attention on the agreement itself and particularly on the circumstances
surrounding the actual plea. Counsel notes that the plea colloquy was searching and
covered all aspects of the matters with which Chen was charged. The District Court
reviewed the consequences of the guilty plea, Chen’s choice to plead guilty and his
understanding of what the plea entailed. Chen was advised of the potential penalties
associated with the guilty plea, the requirements of the Sentencing Guidelines, and the
nature of the constitutional rights waived by entering a guilty plea. Chen then pled guilty
to the two counts, admitting in detail the factual underpinnings of each. At the
conclusion of these proceedings the District Court found Chen fully competent and
capable of entering an informed plea. The District Court was also satisfied that Chen
understood the nature of the charges against him and the consequences of the plea. In
sum, the District Court and Chen’s attorney were satisfied that the plea was knowing,
voluntary, supported by Chen’s admissions of fact, and in all respects compliant with
Fed. R. Crim. P. 11. We do not find anything in the record before us to contradict this
assessment.
Chen’s attorney also addresses the sentence imposed, discussing in some
detail objections raised by Chen to the PSR and the District Court’s disposition of those
objections. According to Chen’s attorney, Chen received a sentence at the bottom of the
applicable range, "that comported fully with the Sentencing Guidelines." Counsel for
Chen advises us that his review of the sentencing proceedings did not reveal any non-
frivolous ground for appeal.
In his pro se brief, Chen raises two issues. He focuses first on his medical
status. At sentencing Chen requested a downward departure pursuant to U.S.S.G.
5H1.4 based on his having been diagnosed with a peptic ulcer and a precancerous lesion.
The District Court declined to depart stating that downward departure based on medical
reasons was not warranted here "where the defendant appears to have a treatable
condition," and "the Bureau of Prisons is able to provide suitable care." In his pro se
brief, Chen states that he has not, in fact, received suitable care.
Chen does not challenge the calculation of his sentence per se. Even had
he raised a sentencing claim, we lack jurisdiction to review the District Court’s
discretionary decision not to grant a downward departure. United States v. Denardi, 892
F.2d 269, 270-72 (3d Cir. 1989). In any event, Chen’s complaint regarding medical
treatment is not cognizable here. As the government points out, this claim should be
addressed in administrative proceedings with the Bureau of Prisons. See 28 C.F.R.
542.10 et. seq. To date, Chen has not pursued this avenue of relief.
Chen also objects to a two-level adjustment based on his role in the
offense. This objection stems from a discrepancy between the language of U.S.S.G.
3B1.1(c) which provides for a two-level increase "[i]f the defendant was an organizer,
leader, manager, or supervisor in a criminal activity," and the following language in the
PSR: "The Defendant assumed an aggravating role yet less than an organizer, leader,
manager, or supervisor. Pursuant to U.S.S.G. 3B1.1(c), the offense is increased two
levels." (Emphasis supplied.) While the discrepancy highlighted does exist, Chen did
not object to the language used in the PSR, and, in fact, stipulated to a two level upward
adjustment based on his role in the offense. The stipulation, made part of the plea
agreement, reads: "Gui Feng Chen played a management/supervisory role in this offense,
which involved five or more conspirators." Despite the inaccurate rendering of section
3B1.1(c) in the PSR, Chen received exactly that to which he stipulated and may not now
attempt to repudiate that stipulation. United States v. Cianci, 154 F.3d 106, 109 (3d Cir.
1998). The conduct set forth in the plea agreement is more than sufficient to support the
upward enhancement.
II.
Defense counsel advises us, after a thorough review of the record and the

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transcripts, that he has not found any non-frivolous issue for appeal. Our own
examination of the record, the transcripts, and Chen’s pro se submission, does not reveal
any issue of merit. As a result, we will grant counsel’s motion to withdraw and will
affirm the judgment in a criminal case.
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TO THE CLERK:
Please file the foregoing opinion.
_________/s/ Carol Los Mansmann, ____
Circuit Judge

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