United States of America v. Santos Garcia Rodriguez

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 02-2923
UNITED STATES OF AMERICA
v.
SANTOS GARCIA RODRIGUEZ,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 01-cr-00667)
District Judge: Hon. Clarence C. Newcomer
Submitted Under Third Circuit LAR 34.1(a)
December 1, 2003
Before: SLOVITER, ALITO and FRIEDMAN,* Circuit Judges
(Filed: December 2, 2003 )
OPINION OF THE COURT
_____________________
* Hon. Daniel M. Friedman, United States Senior Circuit Judge for the Federal Circuit,
sitting by designation.

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SLOVITER, Circuit Judge.
Santos Garcia Rodriguez, the appellant, was charged with three drug offenses in a
three count indictment. He pled guilty to Count 1 (conspiracy to distribute more than 100
grams of heroin) and Count 3 (possession of more than 100 grams of heroin with intent to
distribute in a school zone). He was sentenced to 60 months imprisonment, a fine of
$500, a special assessment of $200, and 8 years of supervised release. On appeal, he does
not deny his guilt, does not raise any issue concerning the manner in which the evidence
was obtained, and does not object to the manner in which he was sentenced. His appeal is
limited to a challenge to the failure of the Government to move for a downward departure
under § 5K1.1 of the Sentencing Guidelines based on information that he provided.
Counsel has provided a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that in counsel’s opinion there are no issues of arguable merit which can
be advanced on behalf of Rodriguez. We agree and will affirm the judgment of
conviction and sentence. Under Anders, the defendant is free to file a pro se brief.
Although he was notified of that opportunity, Rodriguez has not filed a pro se brief on
appeal.
Under Anders, an appointed appellate counsel who “finds [a] case to be wholly
frivolous, after a conscientious examination of it,” must so advise the court of appeals and
request permission to withdraw. Id. at 744. Counsel must file a brief referring to
anything in the record that might arguably support the appeal. As explained subsequently

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by the Supreme Court in Smith v. Robbins, 528 U.S. 259 (2000), the brief must identify
any “issue arguably supporting the appeal even though the appeal was wholly frivolous.”
Id. at 285. This court has made clear that counsel must explain why the issues are
frivolous and show that counsel “thoroughly scoured the record in search of appealable
issues.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000); see United States v.
Youla, 241 F.3d 296, 300 (3d Cir. 2001).
Under the circumstances of this case, counsel for Rodriguez could not reasonably
have challenged his guilt. Rodriguez participated in a transaction of selling, to a
Government confidential source, a total of 149.3 grams of heroin. Because Rodriguez
pled guilty, he has waived, inter alia, his constitutional privilege against self-
incrimination, the right to a trial by jury, and the right to confront his accusers. Counsel
discusses the one possible ground that Rodriguez may arguably claim, the Government’s
failure to file a § 5K1.1 motion which would have reduced Rodriguez’s 60-month
mandatory sentence under the applicable statute. Counsel, however, recognized that such
an approach would be unsuccessful because the written plea agreement between
Rodriguez and the United States did not contain any provision concerning cooperation or
any Government obligation concerning information Rodriguez provided. Rodriguez did
provide some information to the Government, but the Assistant U.S. Attorney advised the
court that Rodriguez had not offered information which was of “substantial” benefit. The
Government has the authority, but not the duty, to file a motion requesting the sentencing

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court to impose a sentence below the statutory minimum to reflect a defendant’s
“substantial assistance.” 18 U.S.C. § 3553(e). As the Supreme Court has held, a court
can review the Government’s discretionary decision not to file a § 5K1.1 motion if that
decision was based on an unconstitutional motive. See Wade v. United States, 504 U.S.
181, 185-86 (1992). There is no suggestion in the record that there was any such
unconstitutional motive for the Government’s decision not to file a motion under § 5K1.1.
Accordingly, counsel was correct in determining that there were no nonfrivolous
issues to raise on appeal. We are satisfied that counsel has complied with the
responsibilities placed upon him under Anders. We will therefore affirm the conviction
and sentence, and we will grant counsel’s motion to withdraw.
____________________
TO THE CLERK:
Please file the forgoing opinion.
/s/ Dolores K. Sloviter
Circuit Judge

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December 1, 2003
TO: Marcia M. Waldron, Clerk
FROM: Judge Sloviter
RE: United States v. Rodriguez, No. 02-2923
Submitted Monday, December 1, 2003
Dear Marcy:
Enclosed for filing is the not precedential opinion in the above case which
has been cleared in accordance with our procedure.
DKS/hcr DKS
Enclosure
cc: Judge Alito
Judge Friedman

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