United States of America v. Juan Javier Cartagena, a/k/a, Orlando Yorro Bermudez

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
NO. 01-2713
UNITED STATES OF AMERICA
v.
JUAN JAVIER CARTAGENA,
a/k/a, Orlando Yorro Bermudez,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 00-cr-00649-1)
District Judge: Hon. William H. Yohn, Jr.
Submitted Under Third Circuit LAR 34.1(a)
October 14, 2003
Before: SLOVITER, ROTH, and CHERTOFF, Circuit Judges
(Filed: October 22, 2003)
OPINION OF THE COURT

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SLOVITER, Circuit Judge.
I.
Juan Javier Cartagena, a/k/a Orlando Yorro Bermudez, appeals from the judgment
of sentence imposed by the District Court following Cartagena’s guilty plea to conspiracy
to distribute heroin under 21 U.S.C. § 846, distribution of heroin under 21 U.S.C. §
841(a)(1), distribution of heroin within 1,000 feet of a school under 21 U.S.C. § 860, and
aiding and abetting under 18 U.S.C. § 2. Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which counsel stated there are no non-frivolous issues
to appeal. Under Anders, if, after review of the record and conscientious investigation,
counsel is convinced that an appeal would present no issue of arguable merit, counsel
may move to withdraw but must submit a brief referencing those matters that may be
appealable. Id. at 744. Counsel for Cartagena did so, and Cartagena submitted a pro se
brief and reply brief. We have jurisdiction pursuant to 18 U.S.C. § 3742 to review the
sentence imposed on Cartegena.
II.
Because this is written solely for the parties, a detailed recitation of the facts is
unnecessary and the discussion is limited to those facts necessary to resolve the issues
presented.
Cartagena engaged in five separate narcotics transactions with a DEA cooperating
witness from May through July of 2000. He was arrested by federal and local law

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enforcement officers present at a pre-arranged transaction and subsequently pled guilty to
six counts in the indictment charging distribution of and conspiracy to distribute and
distribution of 867 grams of heroin within 1,000 feet of a school. Thereafter, the
Probation Office prepared the presentence report (“PSI”) which calculated the sentencing
base offense level at 34, subtracted three points for Cartagena’s acceptance of
responsibility, added four points for Cartagena’s role as a conspiracy leader and set the
final level at 35. This, with Cartagena’s Criminal History Category of I, set the
sentencing level at 168-210 months.
At the pre-sentence hearing to assess the quantity of drugs attributable to
Cartagena’s conduct, the Government produced a witness who testified that Cartagena
was responsible for a greater quantity of heroin than that set forth in the PSI. However,
the Government had failed to submit its objection to the PSI within the 14 days required
by Fed. R. Crim. P. 32(b)(6)(B), as applicable at that time. Following a continuance that
enabled Cartegena to file letter briefs on the Government’s untimely objection, the
District Court determined that Cartegena and his co-conspirators were each responsible
for distributing 2.5 kilograms of heroin from January to June. The court sentenced
Cartagena to 169 months of incarceration.
III.
Where an unconditional guilty plea is entered, appellate relief is generally limited
to claims that: (1) the district court lacked jurisdiction to accept the plea; (2) the plea was

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invalid; and (3) the sentence is illegal. See United States. v. Broce, 488 U.S. 563, 569
(1989). In his Anders brief, counsel for Cartagena submits that any such claim is
frivolous here. We are satisfied that counsel’s conclusions in its Anders brief are based
on a “conscientious examination” of the record and informed by the relevant law.
Cartagena challenges the legality of the sentence.
First, Cartagena argues that the District Court abused its discretion by permitting
the Government’s untimely objection to the PSI’s finding of the amount of heroin.
However, in United States v. Campbell, 295 F.3d 398, 406 (3d Cir. 2002), discussing Fed.
R. Crim. P. 32(b)(6)(D), we noted that “the court may allow new objections to be raised
at any time before imposing sentence if good cause is shown.” In a related case, we
defined “good cause” as “an express, good faith explanation for the delay, or when failure
to consider the objection may result in an erroneous sentence.” United States v. Javier-
Cartagena, 68 Fed. Appx. 293, 299 (3d Cir. 2003). The District Court here determined
that the Government’s objection had “just cause.” App. at 140. Although Cartagena
argues that he was deprived of the opportunity to challenge the belated Government
objection, the District Court permitted further briefing as to the relevant quantity of drugs,
and provided Cartagena the option to seek a continuance for that purpose.
Second, Cartagena argues that his right to due process was violated when the
Government failed to provide notice of its intention to seek a sentence beyond that
recommended by the PSI. We reject his argument because at the plea hearing the

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Government stated that it would be able to prove that Cartagena was responsible for a
greater quantity of heroin as was charged in the indictment. App. at 27. Thus, Cartagena
was on notice of the Government’s intention.
Finally, Cartagena argues that the sentence is illegal under Apprendi v. New
Jersey, 530 U.S. 466 (2000). He contends that the facts submitted by the Government
after the indictment but before the sentencing increased the incarceration beyond the
statutory maximum and should have been submitted to a jury and proved beyond a
reasonable doubt. This argument is frivolous. There was no Apprendi violation. Where
the sentence imposed was under the applicable statutory maximum, Apprendi is not
triggered. United States v. Williams, 235 F.3d 858 (3d Cir. 2000). Distribution of 100
grams or greater of heroin, to which Cartagena admitted in his plea, carries a maximum
penalty of 40 years imprisonment. See 21 U.S.C. § 841(b)(1)(B). Cartagena was
sentenced to a lesser amount.
The cases relied on by Cartagena, United States v. Ramirez, 242 F.3d 348 (6th Cir.
2001), and United States v. Strayhorn, 250 F.3d 462 (6th Cir. 2001), were overturned by
the same court, see United States v. Leachman, 309 F.3d 377 (6th Cir. 2002), to comport
with Apprendi’s teaching that “any fact (other than prior conviction) that increases the
maximum penalty for a crime must be charged in an indictment, submitted to a jury, and
proven beyond a reason doubt,” 530 U.S. at 476 (emphasis added) (internal quotation
omitted). “Maximum penalty” means the maximum statutory penalty, not the statutory

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minimum, as Cartagena argues. Jones v. United States, 526 U.S. 227, 243 & n.6 (1999).
IV.
Inasmuch as there was no showing of error affecting Cartagena’s substantial
rights, such that the “fairness, integrity, or public reputation of judicial proceedings” have
been seriously affected, United States v. Cotton, 535 U.S. 625, 632-33 (2002), we will not
overturn the District Court’s decision to permit the Government’s belated objection to the
PSI and to sentence Cartagena based on a quantity greater than that specified in the
indictment. Because there are no non-frivolous issues for appeal, we will affirm the
judgment of sentence and grant counsel’s motion to withdraw.
TO THE CLERK:
Please file the foregoing opinion.
/s/ Dolores K. Sloviter
Circuit Judge

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