United States of America v. HECTOR MENDEZ a/k/a JAVIER Hector Mendez

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1237
UNITED STATES OF AMERICA
Appellee
v.
HECTOR MENDEZ a/k/a JAVIER
Hector Mendez,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 02-cr-00673-2)
District Judge: Honorable Jerome B. Simandle
Submitted Under Third Circuit LAR 34.1(a)
Date: February 18, 2005
Before: Sloviter, Ambro and Aldisert, Circuit Judges.
(Filed February 25, 2005)
OPINION OF THE COURT

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ALDISERT, Circuit Judge.
Appellant Hector Mendez, pursuant to a negotiated plea agreement, pled guilty to
one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 (2000). At
the sentencing hearing, Mendez’s counsel argued that he should be sentenced as a
minimal participant based on his role in the offense. Although the district court declined
to sentence Mendez as a minimal participant, he did rule that his actions were sufficient
to warrant a downward departure under U.S.S.G. § 5K1.1 and sentenced Mendez to 120
months imprisonment followed by five years supervised release. Mendez now appeals
that conviction and sentence.
Mendez’s appointed counsel, Jerrold D. Colton, has filed a motion and brief
stating that, after a conscientious examination of the record and relevant cases, he has
determined that Mendez’s appeal is fully frivolous. He has requested permission to
withdraw under Anders v. California, 386 U.S. 738 (1967). We will grant Mr. Colton’s
request to withdraw and affirm the judgment of the district court.
I.
Because we write only for the parties, who are familiar with the facts, procedural
history and contentions presented, we will not recite them except as necessary to the
discussion.
II.
In Anders, the Supreme Court held that if, after conscientious review of the

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record, counsel determines that there are no non-frivolous issues for review, he should
advise the court and request permission to withdraw. 386 U.S. at 744. This request must
be accompanied by a brief referring to anything in the record that might arguably support
the appeal. Id. The Third Circuit’s Local Appellate Rule (“LAR”) 109.2(a) implements
the Anders command. This Court has a twofold inquiry: (1) whether counsel adequately
fulfilled the rule’s requirements; and (2) whether an independent review of the record
presents any non-frivolous issues. United States v. Youla, 241 F. 3d 296, 300 (3d Cir.
2001).
III.
Here, Mr. Colton has fulfilled LAR 109.2(a)’s requirements. In his brief, counsel
explains that the court complied with the proper procedural safeguards: Mendez was
fully advised of his constitutional rights; he acknowledged that he read and understood
the plea agreement; he indicated that his decision to plead guilty was voluntary and the
court established a factual basis for the guilty plea. (App. at 21-44.)
An independent review of the record by this Court uncovers no other non-
frivolous issues. Mendez has not filed a pro se brief. There are two sentencing issues
capable of identification, both of which are frivolous. First, it would have been
inappropriate for the court to sentence Mendez as a minimal participant because his role
in the conspiracy was equal to that of his co-conspirators. Second, the district court could
not have granted a lower downward departure because of the statutory mandatory

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minimum of ten years. The court granted a 68-month downward departure from the
bottom of the recommended 188 to 235 month sentence range. We conclude that his
counsel has “thoroughly scoured the record in search of appealable issues,” he found two
potential issues and “explain[ed] why those issues [were] frivolous.” United States v.
Marvin, 211 F.3d 778, 780 (3d Cir. 2000)
We have considered all of the arguments advanced by the parties and conclude
that no further discussion is necessary.
The judgment of the district court will be affirmed.

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