United States of America v. LUIS A. GONZALEZ also known as LUIS ROMERO GONZALEZ Luis A. Gonzalez

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3125
UNITED STATES OF AMERICA
v.
LUIS A. GONZALEZ
also known as
LUIS ROMERO GONZALEZ
Luis A. Gonzalez,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
D.C. Criminal No. 06-cr-0117-1
(Honorable William J. Martini)
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 3, 2008
Before: SCIRICA, Chief Judge, FISHER and ROTH, Circuit Judges.
(Filed April 18, 2008 )
OPINION OF THE COURT

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Gonzalez’s attorney filed a brief under Anders v. California, 386 U.S. 738 (1967), and1
a motion to withdraw as court-appointed counsel. Gonzalez filed a pro se brief with this
Court on April 20, 2007.
2
SCIRICA, Chief Judge.
Luis A. Gonzalez appeals his criminal sentence and conviction. We will affirm.1
Gonzalez pled guilty to a one-count information charging conspiracy to distribute
one kilogram or more of heroin under 21 U.S.C. § 846, in violation of 21 U.S.C. §
841(a)(1) & (b)(1)(A). Refusing the Government’s proposed plea agreement, Gonzalez
chose instead to enter an open plea of guilty. Defense counsel and the District Court
discussed with Gonzalez the proposed plea agreement, pleading open to the court, his
right to a jury trial, the risks associated with trial and pleading, and the advisory nature of
the sentencing guidelines. Gonzalez entered his plea knowingly, intelligently, and
voluntarily.
The proposed plea agreement established the Base Offense level at 36 with a
possible reduction to 31. The Pre-sentence report established the Sentencing Guideline
range as 108 to 135 months. The statutory minimum under 21 U.S.C. § 841 (b)(1)(A)
was 120 months. Gonzalez rejected the Government’s proposed plea agreement, hoping
to receive a “safety valve” sentence reduction to which the Government would not
consent. Considering all relevant information, the District Court found Gonzalez “safety
valve” eligible and sentenced him to 87 months incarceration.

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3
Our review reveals defense counsel thoroughly considered all plausible bases for
appeal and set forth in the Anders brief why such issues were legally frivolous. Counsel
examined the guilty plea colloquy transcript, the sentencing transcript, the Presentence
Investigative Reports, and other documents. Gonzalez knowingly and voluntarily entered
the guilty plea, waiving his Constitutional rights. Gonzalez acknowledged he understood
the charges and essential elements to which he pled guilty. The District Court’s sentence
was well below the statutory and Guideline minimums. Based on our own examination of
the record, we conclude that counsel satisfied the requirements of Third Circuit Local
Appellate Rule 109.2(a) under Anders.
Gonzalez also submitted a brief, raising three issues: 1) ineffective assistance of
counsel, and 2) exposure to double jeopardy liability by the plea agreement, and 3)
improper calculation of drug quantity by the District Court. We do not ordinarily
consider ineffective assistance claims on direct review, as such claims are “best decided
in the first instance in a collateral action.” United States v. Thornton, 327 F.3d 268, 272
(3d Cir. 2003).
Turning to Gonzalez’s second contention, regardless of the terms, Gonzalez did
not accept the proposed plea agreement and is not bound by them. Gonzalez rejected the

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Moreover, the provisions in the plea agreement to which Gonzalez refers would not2
have subjected the Defendant to double jeopardy. If the guilty plea did not remain in full
force and effect, any dismissed charges and other charges could have been brought
against Gonzalez so long as they were not time-barred. Additionally, the plea agreement
did not absolve Gonzalez of any civil liability. Neither of these provisions exposed
Gonzalez to double jeopardy.
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Government’s proposed plea agreement and plead to the court. The terms of the
proposed plea agreement did not and do not apply.2
Finally, Gonzalez contends the District Court improperly calculated the drug
quantity relied upon in sentencing. However, the District Court did not calculate the drug
quantity at all. During the guilty plea colloquy, Gonzalez stipulated that over thirteen
kilograms of heroin were involved in the conspiracy. This admitted quantity was the
basis of the District Court’s consideration.
Accordingly, there are no non-frivolous arguments raised in this appeal.
For the foregoing reasons, we will affirm the judgment of conviction and sentence.
Defense counsel’s motion to withdraw is granted.

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