No: 02-3910 UNITED STATES OF AMERICA v. Francisco Javier-Lina, a/k/a JUAN DE LA CRUZ, a/k/a PIMENTEL-MONTANO, Francisco…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No: 02-3910
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UNITED STATES OF AMERICA
v.
FRANCISCO JAVIER-LINA,
a/k/a JUAN DE LA CRUZ,
a/k/a PIMENTEL-MONTANO,
Francisco Javier-Lina,
Appellant
Appeal from the District Court of the Virgin Islands
(D.C. Civil Action No. 00-cr-00744)
District Judge: Honorable Thomas K. Moore
Submitted Under Third Circuit LAR 34.1(a)
on May 1, 2003
Before: ROTH, MCKEE and COWEN Circuit Judges
(Opinion filed: August 27, 2003)

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O P I N I O N
ROTH, Circuit Judge:
This is an appeal from an October 2, 2002, judgment of the District Court of the
Virgin Islands. Defense Counsel has filed a motion to withdraw and supporting brief
pursuant to Anders v. California, 386 U.S. 738 (1967).
In September 1992, the appellant, Francisco Javier-Lina, pled guilty in
Connecticut to possession of a controlled substance with intent to deliver. Subsequently,
Javier-Lina was deported. On December 29, 2000, Javier-Lina approached the foreign
arrivals section of the St. Thomas airport immediately after his flight landed. The
immigration officers discovered that his passport was false and refused to admit him to
the United States. He was charged with re-entry after deportation in violation of 8 U.S.C.
§ 1326(a)(b).
On October 10, 2001, Javier-Lina pled guilty to re-entry after deportation as
charged in Count II of the charging instrument. At the change of plea hearing, Javier-
Lina moved to amend the charge on the ground that the factual basis was insufficient for
“re-entry after deportation,” because the facts only supported a charge of attempted re-
entry after deportation. The court denied the motion. Subsequently, the District Court
accepted the plea.

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On October 2, 2002, Javier-Lina appeared for sentencing. Javier-Lina objected to
the pre-sentence report’s (PSR) determination that he had been convicted of an
aggravated felony prior to his first deportation and that he had been convicted of a “drug
trafficking” offense as defined in U.S.S.G. § 2L1.2 note 1 (B)(iii). The court accepted the
findings in the PSR, denied Javier-Lina’s objections, and sentenced him to 71 months in
prison.
We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742. W hen evaluating the merits of counsel’s motion to withdraw, our inquiry
is twofold. We must evaluate (1) whether counsel’s brief adequately fulfills the Anders
requirements, and (2) whether an independent review of the record presents any non-
frivolous issues. See United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).
Under Anders, if, after a conscientious examination of the case on appeal, court-
appointed counsel “finds his case to be wholly frivolous . . . he should so advise the Court
and request permission to withdraw.” 386 U.S. at 744. The request must be accompanied
by “a brief referring to anything in the record that might arguably support an appeal.” Id.
The brief must (1) “satisfy the court that counsel has thoroughly examined the record in
search of appealable issues,” Youla, 241 F.3d at 300, (2) identify “issues arguably
supporting” an appeal, Smith v. Robbins, 528 U.S. 259, 285 (2000), and (3) explain why
the issues are frivolous. Youla, 241 F.3d at 300.
Our first inquiry is whether counsel’s brief meets the necessary requirements. See
Youla, 241 F.3d at 300. Counsel identifies the following issues as arguably supporting an

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appeal: (1) Whether the factual basis for the charge of re-entry after deportation, to which
Javier-Lina pled guilty, is insufficient, and whether any such error was harmless; and (2)
Whether the District Court erred by failing to examine the full record of Javier-Lina’s
prior convictions under Connecticut law when it imposed the 16-level enhancement based
on a prior conviction for “drug trafficking,” as defined by U.S.S.G. § 2L1.2.
Defense counsel found the first arguably appealable issue frivolous. After making
a diligent and thorough examination of the charges and the facts, counsel concludes that
Javier-Lina’s sentence would have been the same had he been properly convicted and
sentenced for attempted re-entry after deportation. Therefore, the error was harmless, and
the issue is frivolous.
As for the second arguably appealable issue, counsel performed an equally diligent
and thorough investigation as to its merits. Counsel identified the argument’s invalidity.
Though the language of the Connecticut statute under which Javier-Lina was convicted
can mean only an offer to distribute which does not necessarily involve “distributing or
delivering” as required under § 2L1.2 for a level enhancement based on “drug
trafficking,” the court would have ultimately determined that Javier-Lina was convicted
of possession of narcotics with intent to sell. When construing a broadly drafted statute,
the general rule is that the sentencing court can take judicial notice of the charging
documents to determine whether a person was convicted under specific parts of the
statute. United States v. Spell, 44 F.3d 936, 939 (11th Cir. 1995) (explaining that when
statute is broad, sentencing court is no longer required to take strict “categorical

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approach” in determining from what type of crime prior conviction stemmed). Thus, the
District Court would have determined that Javier-Lina’s prior conviction did involve
distribution and would permit a level enhancement pursuant to § 2L1.2. Therefore, the
error was harmless and the issue is frivolous.
Counsel’s brief identifies the arguably appealable issues and explains why they are
frivolous. Furthermore, the brief is evidence that counsel thoroughly examined the
record. After considering counsel’s brief, we find that it appears adequate on its face.
Under Anders, “a copy of counsel’s brief should be furnished to the indigent and
time allowed [to the defendant] to raise any points that he chooses.” 386 U.S. at 744. A
copy of defense counsel’s brief was furnished to the defendant. Javier-Lina has failed to
file a brief raising any other points.
As set forth above, the issues that the defense counsel has identified are wholly
frivolous. Accordingly, the appeal is wholly frivolous. Youla, 241 F.3d at 299. As such,
we will grant counsel’s motion to withdraw and affirm the judgment of the District Court.

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TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/Jane R. Roth
Circuit Judge

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