United States of America v. Jonathan Berberena

* The Honorable John R. Gibson, Senior Circuit Judge for the United States Court of
Appeals for Eighth Circuit, sitting by designation.
NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2361
UNITED STATES OF AMERICA
v.
JONATHAN BERBERENA,
Appellant
___________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Judge: The Honorable Michael M. Baylson
(D.C. No. 02-cr-587)
_________________________
Submitted pursuant to Third Circuit LAR 34.1(a)
on March 23, 2004
Before: FUENTES, SMITH and GIBSON*, Circuit Judges
(Filed: April 5, 2004)
____________________
OPINION OF THE COURT
_____________________
SMITH, Circuit Judge.
Jonathan Berberena, pursuant to a written plea agreement, pled guilty to all five
counts set forth in an indictment filed against him: conspiracy to distribute and possession

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1The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
with intent to distribute cocaine base, possession with intent to distribute cocaine and
possession with intent to distribute cocaine and cocaine base within one thousand feet of
a school. After reading his presentence report, but prior to being sentenced, Berberena
moved to withdraw his guilty plea. That motion was denied. He was then sentenced to
384 months imprisonment, five years of supervised release and a special assessment of
$500.1
After reviewing the record and caselaw, Berberena’s counsel now moves to
withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). In Anders, the Supreme
Court stated that the “constitutional requirement of substantial equality and fair process”
means that appellate counsel must act as an advocate for the defendant. 386 U.S. at 744.
Thus, counsel’s
role as advocate requires that he support his client’s appeal to the best of his
ability. Of course, if counsel finds his case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request
permission to withdraw. That request must, however, be accompanied by a
brief referring to anything in the record that might arguably support the
appeal.
Id. As we explained in United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001), the
Anders brief must demonstrate that counsel has “thoroughly examined the record in
search of appealable issues,” and it must “explain why the issues are frivolous.”
Accordingly, our inquiry is twofold: (1) whether counsel adequately fulfilled the

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requirements of Anders; and (2) “whether an independent review of the record presents
any nonfrivolous issues.” Id. (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir.
2000)); see also Anders, 386 U.S. at 744 (explaining that the court must proceed, “after a
full examination of all the proceedings, to decide whether the case is wholly frivolous”).
If review fails to reveal any nonfrivolous issues, the court “may grant counsel’s request to
withdraw and dismiss the appeal.” Anders, 386 U.S. at 744.
After considering counsel’s Anders brief, we are satisfied that she thoroughly
examined the record for issues of arguable merit and fulfilled the requirements of Anders.
Counsel correctly observed that Berberena’s plea of guilty limited the issues he is entitled
to challenge on appeal to the District Court’s jurisdiction, the validity of the guilty plea,
and the legality of the sentence. United States v. Broce, 488 U.S. 563, 570-75 (1989). As
Berberena’s counsel noted, there is no basis for disputing the District Court’s jurisdiction.
With respect to the validity of Berberena’s guilty plea, counsel fully satisfied her
obligation under Anders. She considered not only whether the guilty plea proceeding
complied with the requirements of Boykin v. Alabama, 395 U.S. 238 (1969), but also
addressed each of the requirements of Federal Rule of Criminal Procedure 11.
Berberena’s counsel also properly addressed his motion to withdraw his plea upon
learning of the sentence that would result from his presentence report, and noted that the
District Court properly denied that motion in light of United States v. Harris, 44 F.3d
1206, 1210 (3d Cir. 1995).

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2Counsel’s notice to Berberena is consistent with Local Appellate Rule 109.2(a) of the
Third Circuit which provides:
Where, upon review of the district court record, trial counsel is persuaded that the
appeal presents no issue of even arguable merit, trial counsel may file a motion to
withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738
(1967), which shall be served upon the appellant and the United States. The
United States shall file a brief in response. Appellant may also file a brief in
response pro se. After all the briefs have been filed, the clerk will refer the case to
a merits panel. If the panel agrees that the appeal is without merit, it will grant
trial counsel’s Anders motion, and dispose of the appeal without appointing new
counsel. If the panel finds arguable merit to the appeal, it will discharge counsel,
appoint substitute counsel, restore the case to the calendar, and order supplemental
briefing.
3We note that Berberena claims ineffective assistance of counsel in his pro se brief, but as
we noted in United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003), “[i]t has long
been the practice of this court to defer the issue of ineffectiveness of trial counsel to a
collateral attack.”
4
Berberena’s sentencing was also conscientiously examined by his appellate
counsel. We agree that the District Court did not err in calculating the criminal history
score. Our review of the record confirms that the District Court had sufficient evidence
to support its computation of Berberena’s criminal history score.
Counsel advised Berberena of his intention to file an Anders brief and that
Berberena was entitled to file a pro se brief.2 Berberena filed a brief pro se which
conformed to the assessment of his case made by his attorney in her Anders brief.3
In sum, we agree with counsel’s assessment of Berberena’s appeal. Our own
independent review of the record fails to reveal any nonfrivolous issues for appeal.
Accordingly, we will grant counsel’s motion to withdraw and affirm the judgment

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of the District Court entered on May 1, 2003. We certify that the issues presented in the
appeal lack legal merit and thus do not require the filing of a petition for writ of certiorari
with the Supreme Court. 3d Cir. LAR 109.2(b).

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