United States of America v. Edgardo Mateo

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-5376
UNITED STATES OF AMERICA
v.
EDGARDO MATEO,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Judge: The Honorable Timothy J. Savage
(D.C. No. 05-cr-00071-11)
Submitted pursuant to Third Circuit LAR 34.1(a)
on April 8, 2008
Before: SMITH, HARDIMAN,
and COWEN, Circuit Judges
(Filed: April 16, 2008)
OPINION
SMITH, Circuit Judge.
On July 26, 2005, Edgardo Mateo entered an “open” plea of guilty to conspiracy to
distribute and conspiracy to possess with the intent to distribute cocaine in violation of 21

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1 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
U.S.C. § 846, and to distribute cocaine in violation of 21 U.S.C. § 841. He was sentenced
to a term of 108 months imprisonment and five years of supervised release, and ordered
to pay a $200 special assessment fee. Thereafter, Mateo timely filed a pro se notice of
appeal.1 On February 15, 2006, this Court granted Mateo’s request for court-appointed
counsel. On January 5, 2007, Mateo’s counsel moved to withdraw pursuant to Anders v.
California, 386 U.S. 738 (1967), after concluding that there are no nonfrivolous issues for
appeal.
In Anders, the Supreme Court stated that the “constitutional requirement of
substantial equality and fair process” means that appellate counsel must act as an
advocate for the defendant. 386 U.S. at 744. Thus, counsel’s
role as advocate requires that he support his client’s appeal to the best of his
ability. Of course, if counsel finds his case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request
permission to withdraw. That request must, however, be accompanied by a
brief referring to anything in the record that might arguably support the
appeal.
Id. As we explained in United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001), the
Anders brief must demonstrate that counsel has “thoroughly examined the record in
search of appealable issues,” and it must “explain why the issues are frivolous.”
Accordingly, our inquiry is twofold: (1) whether counsel adequately fulfilled the
requirements of Anders; and (2) “whether an independent review of the record presents

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any nonfrivolous issues.” Id. (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir.
2000)); see also Anders, 386 U.S. at 744 (explaining that the court must proceed, “after a
full examination of all the proceedings, to decide whether the case is wholly frivolous”).
If review fails to reveal any nonfrivolous issues, the court “may grant counsel’s request to
withdraw and dismiss the appeal.” Anders, 386 U.S. at 744.
Counsel correctly explained that Mateo’s guilty plea constituted a waiver of almost
all issues for appeal. As a result, counsel asserted that Mateo was limited to claiming that
he had a constitutional right not to be haled into court on a charge, to challenging the
validity of his guilty plea, and to attacking the legality of his sentence. See 18 U.S.C. §
3742(a); United States v. Broce, 488 U.S. 563, 574–76 (1989); Tollett v. Henderson, 411
U.S. 258, 267 (1973). After considering the submission of Mateo’s counsel, we are
persuaded that the District Court engaged in a thorough colloquy with Mateo prior to
accepting his plea as required by Federal Rule of Criminal Procedure 11. None of
Mateo’s pre-trial motions concerned jurisdictional matters; therefore, his right to appeal
these rulings was waived by his plea. United States v. Panarella, 277 F.3d 678, 689 (3d
Cir. 2002); United States v. Bentz, 21 F.3d 37, 38 (3d Cir. 1994).
Consistent with Third Circuit Local Appellate Rule 109.2(a), Mateo was apprised
of counsel’s motion to withdraw and afforded an opportunity to file a response. Mateo’s
pro se brief asserted that the calculation of his offense level was incorrect and that his
counsel had been ineffective. We decline to address the ineffectiveness assistance of
counsel claim because it is raised here on direct appeal; instead, it should be raised in a

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2 Pursuant to U.S.S.G. § 2D1.1(c)(4), Mateo’s base offense level was 32. Two levels
were added, as required by U.S.S.G. § 2D1.1(b)(1), because Mateo was found to have
been in possession of a firearm. However, Mateo was entitled to a three-level downward
adjustment because he timely notified the government of his intent to plead guilty, which
resulted in a total offense level of 31. Because Mateo had no criminal history points, the
resulting guideline range was 108 to 135 months, but the range shifted upward to 120 to
135 months because Mateo was subject to statutory mandatory minimum sentences for
the counts of his indictment. Mateo filed no objections to the draft PSR.
3 18 U.S.C. § 3553(f) provides, in pertinent part:
Notwithstanding any other provision of law, in the case of an offense under . . . the
Controlled Substances Act . . . the court shall impose a sentence pursuant to
guidelines promulgated by the United States Sentencing Commission . . . without
regard to any statutory minimum sentence, if the court finds at sentencing, after the
Government has been afforded the opportunity to make a recommendation, that–
(1) the defendant does not have more than 1 criminal history point, as
determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or
possess a firearm or other dangerous weapon (or induce another participant
to do so) in connection with the offense . . . .
Id.
4
collateral proceeding pursuant to 28 U.S.C. § 2255. United States v. Thornton, 327 F.3d
268, 271 (3d Cir. 2003). We are, however, persuaded that the District Court erred in its
calculation of Mateo’s sentencing guideline range.
Prior to sentencing, the Presentence Investigation Report (“PSR”) determined that
Mateo was entitled to a guideline range of 120 to 135 months.2 At his sentencing hearing
on December 7, 2005, Mateo argued that he qualified for the “safety valve” provision of
18 U.S.C. § 3553(f). 3 Because the government opposed the application of the “safety
valve” provision, arguing that Mateo had possessed a gun related to the drug conspiracy,

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the District Court held an evidentiary hearing. At the conclusion of the hearing, the
District Court rejected the Government’s argument with respect to Mateo’s gun, and
eliminated the two point adjustment under U.S.S.G. § 2D1.1(b)(1), lowering his offense
level to 29. Furthermore, the Court found that Mateo qualified for the “safety valve”
relief of 18 U.S.C. § 3553(f), thus providing an additional reduction of his offense level to
two levels, from 29 to 27 pursuant to U.S.S.G. § 2D1.1(b)(9). However, during the
sentencing phase of the hearing, the Court neglected to recalculate the offense level to
include the “safety valve” downward departure and Mateo was nevertheless found to have
a base offense level of 29 with a guideline range of 87 to 108 months.
Mateo’s newly-appointed counsel argues that because original defense counsel
misunderstood the offense level calculation, the applicability of the safety valve provision
has been waived. The Government, however, concedes that there was no evidence of
“intentional relinquishment or abandonment of a known right or privilege” and thus, the
miscalculation of the base offense level has not been waived. Johnson v. Zerbst, 304 U.S.
458, 464 (1938). We agree with the Government.
The record reveals that the District Court inadvertently miscalculated the
underlying offense level, which resulted in a higher sentencing guideline range. This
Court has demanded that the “entirety of the Guidelines calculation be done correctly,”
United States v. Jackson, 467 F.3d 834, 838 (3d Cir. 2006), and the correct guidelines
range serves as the “critical starting point for the imposition of a sentence.” United States
v. Hawk Wing, 433 F.3d 622, 631 (8th Cir. 2006). Because the District Court imposed a

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sentence that did not stem from the correct offense level, we will vacate the sentence and
remand for re-sentencing.
Although we are satisfied that defense counsel thoroughly examined the record for
issues of arguable merit and fulfilled the requirements of Anders, and we agree that there
are no nonfrivolous issues of merit for appeal beyond sentencing, we are nevertheless
denying counsel’s motion to withdraw in light of the new obligations he will have at re-
sentencing.

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