United States of America v. Andrew Becht, a/k/a JOSE LOPEZ, a/k/a JOHN RUIZ Andrew Becht

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1627
________________
UNITED STATES OF AMERICA
v.
ANDREW BECHT, a/k/a JOSE LOPEZ, a/k/a JOHN RUIZ
Andrew Becht, Appellant
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 01-cr-00547)
District Judge: Honorable Mary A. McLaughlin
_______________________________________
Submitted February 26, 2004
Before: RENDELL, BARRY, and BECKER, Circuit Judges.
(Filed March 1, 2004)
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OPINION
_______________________
BECKER, Circuit Judge.
Andrew Becht appeals from his conviction, pursuant to an open guilty plea, on
various drug charges. He was sentenced to 120 months in prison, a sentence 90 months
below the bottom of the applicable guidelines range, by reason of a significant downward

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departure by the District Court. Becht filed a timely appeal and following the appeal,
defense counsel filed a motion to withdraw and a brief in support of her motion pursuant
to Anders v. California, 386 U.S. 738 (1967). In that brief, counsel makes the following
statement:
As set forth in this brief, counsel for appellant, after a conscientious
examination of the record and consultation with appellant, can find no non-
frivolous issues for appeal.
Becht has, however, filed an informal pro se brief, the contentions of which we address
infra.
In the Anders brief, Becht’s counsel details the guilty plea colloquy. She then goes
on to explain why Becht’s guilty plea was valid in light of controlling constitutional and
statutory standards, and then to address the validity of Becht’s sentence. With respect to
the guilty plea, we agree that constitutional standards, see Boykin v. Alabama, 395 U.S.
238 (1969) and Federal Rule of Criminal Procedure 11, were met. Judge M cLaughlin
was extremely thorough in her conduct of the Rule 11 colloquy, easily fulfilling all the
requirements of Rule 11 and of Boykin. We note in this regard that the Assistant United
States Attorney gave an extensive description of the factual basis for the plea, the
correctness of which Becht acknowledged, and that the colloquy clearly demonstrates the
voluntariness of the plea.
With respect to the sentence, counsel proceeds step by step, addressing the
calculation of the base offense level, the various adjustments, the calculation of criminal

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1It is noteworthy that Becht was credited with a two point downward adjustment for
acceptance of responsibility pursuant to USSG § 3E1.1(a), despite the Government’s
contention that he should not receive the two point departure because he was found to
have obstructed justice.
2Our review is limited to the issues cited in the Anders and pro se briefs. See United
States v. Youla, 241 F.3d 296, 301 (3d Cir. 2001) (“[W]e confine our scrutiny to those
portions of the record identified by an adequate Anders brief . . . [and] those issues raised
in Appellant’s pro se brief.”).
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history score, the career offender enhancement, and the downward departure. At the end
of the day, we are satisfied that there are no non-frivolous issues for appeal with respect
to the sentence.1 However, we do not content ourselves with this statement, but also
consult Becht’s pro se brief in which he challenges the sentence.2
We note preliminarily that, because Becht had a prior felony drug conviction and a
prior felony conviction for aggravated assault, a violent crime, he was found to be a
career offender under USSG § 4B1.1. Therefore, his guidelines offense level was
enhanced from level 22 to level 34. M oreover, his criminal history points placed him in
Category VI, although his career offender status automatically placed him in Category VI
at all events. Becht’s resulting guidelines range was 262 to 327 months imprisonment.
At sentencing Becht did not object to his career offender classification, but claimed that it
over-represented the seriousness of his criminal history, thus meriting a downward
departure under USSG § 4A1.3. Becht’s counsel argued at length that his criminal
history was overstated, emphasizing that no one was ever seriously injured as a result of
Becht’s crimes, that some of the convictions occurred close in time to one another (within

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nineteen months), and that Becht’s past crimes were a result of a drug problem, but the
District Court responded:
I must say I really don’t find a basis to find these are overstated. They’re all
serious crimes that have led to this final calculation. And although I
certainly hear you with regard to the aggravated assault, he did have a gun .
. . . and then with the drugs, I certainly take that into account . . . but I will
deny that request.
App. 60.
Becht’s argument is stated in his brief as follows:
My argument is that once the Judge made her decision not to grant a
downward departure of the assigned Criminal History category of VI, my
attorney then asked the Judge to consider a departure of the assigned level
of 34, which was assigned to me under the career offender provision. At
this request, the Judge states “You know I can’t do anything about that.
That is an issue for congress, and, I will leave that to congress.” It is my
Belief that the court didn’t realize that it had the authority to consider a
departure from this assigned level of 34.
In United States v. Shoupe, 35 F.2d 835 (3rd Cir.) The court ruled
that a district court judge has the authority to sue it’s discretion in
considering a downward departure from the career criminal provision of the
sentencing guidelines. It further ruled that the district court can depart
horizontally (Criminal History category) as well as vertically (offense level)
or Both.
The court ruled against Horizontally, but I believe did not realize Her
authority in considering a departure from the prescribed offense level. She
did not consider it and say no; she simply said I cannot do anything about
that. That tells me she didn’t Believe there was anything that she could
have done in that situation.
The most relevant portion of the sentencing colloquy is subsumed in the following
statement of the District Court:

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I can appreciate, Ms. Grasso [defense counsel], your argument that – that in
reality the Court should consider this 22 as opposed to 32 in view of the fact
that the small amount of drugs, and that essentially he’s up at that high an
offense level because of the career criminal enhancement provisions.
As you recognize, I really cannot consider that and I do not. That is entirely
Congress’ decision, and not mine. I’ve not been elected to anything, and I
take very seriously the fact that I have to consider that this is a start at a 32
offense level and a – and a category six.
App. 91.
The District Court’s legal statement was correct. We conclude that there was no
error. Shoupe does indeed hold that the Court may depart from both the criminal history
category and the offense level for a career offender if the career offender status overstates
the actual criminal history. But the Court expressly found that Becht’s career offender
status did not overstate his actual criminal history, and its finding is supported. The
District Court misunderstood nothing. In reality, what Becht sought at sentencing (and
still seeks) is to extend the departure for substantial assistance, i.e. more leniency. The
law is clear, however, that we cannot review the District Court’s exercise of discretion as
to the amount of departure. See United States v. Parker, 902 F.2d 221, 222 (3d Cir.
1990); see also United States v. McQuilkin, 97 F.3d 723, 729 (3d Cir. 1996); United
States v. Denardi, 892 F.2d 269, 272 (3d Cir. 1989).
Our jurisprudence requires that counsel in an Anders situation adequately attempt
to uncover the best arguments for his or her client. See United States v. Marvin, 211 F.3d
778 (3d Cir. 2000). We are satisfied that counsel has fulfilled her Anders obligations.

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3We also note our view that, because the issues presented in the appeal lack legal merit,
they do not require the filing of a petition for writ of certiorari with the Supreme Court.
3d Cir. LAR 109.2(b) (2000).
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Indeed we commend counsel on her excellent and comprehensive Anders brief. We will
therefore grant counsel’s request to withdraw, and will affirm the judgment on the
merits.3

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