Appeal from the United States District Court for the District of New Jersey; D.C. Criminal Action No. 90-00173.
Stapleton, Hutchinson and Higginbotham, Circuit Judges. Higginbotham, Circuit Judge, concurring.
HUTCHINSON, Circuit Judge
Kathy-Ann Tannis (Tannis) appeals a judgment of conviction and sentence the United States District Court for the District of New Jersey imposed on her after she pled guilty to a charge of possessing approximately 374 grams of a mixture containing cocaine base, with intent to distribute, in violation of 21 U.S.C.A. § 841(a)(1).
Tannis was sentenced pursuant to the Sentencing Reform Act. The applicable guideline prescribed a sentencing range of 121 to 151 months. The district court permitted a downward departure to the statutory minimum and imposed a sentence of 120 months followed by a five-year term of supervised release. Her motion for an extension of time to file a notice of appeal was allowed by the district court. Appellant's Appendix (App.) at 2a. We have appellate jurisdiction over her appeal under 28 U.S.C.A. § 1291 (West Supp. 1991). The district court had subject matter jurisdiction under 18 U.S.C.A. § 3231 (West 1985).
Tannis's counsel filed a brief pursuant to the decision of the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). In accordance with Anders, counsel stated his opinion that Tannis's appeal does not present any non-frivolous issues for review. However, as Anders requires, he went on to raise and discuss two possible questions. The first concerned the plea proceeding and the second concerned the sentencing process.
After counsel filed the Anders brief in support of his motion for leave to withdraw, a motions panel of this Court granted Tannis an opportunity to file a pro se brief. When she failed to do so within the time set, she was granted an extension. Tannis did not file a pro se brief within the time set by the final extension, which expired on April 15, 1991. She has filed nothing in support of her argument to date.
In accordance with Anders, we have independently considered the matters counsel raises in his Anders brief and also independently examined the record to determine whether it presents any non-frivolous issue that would justify our review. Having found none, we will affirm Tannis's conviction and sentence.
With respect to the plea proceeding, the Anders brief raises a question of whether the district court complied with Federal Rule of Criminal Procedure 11 before accepting Tannis's guilty plea. As interpreted by McCarthy v. United States, 394 U.S. 459, 464-67, 22 L. Ed. 2d 418, 89 S. Ct. 1166 (1969), a court must establish both that a defendant understands the charge to which she is pleading, which guarantees that the plea is voluntary and that there is a factual basis for the plea.
Here, the district court did make certain that Tannis had reviewed a copy of the indictment, that she understood it and that she had discussed it with counsel. App. at 7a. The district court then went on to review the rights that Tannis would be waiving by pleading guilty and the maximum penalties that could be imposed. App. at 21a-22a. The record concerning the Rule 11 plea colloquy demonstrates that Tannis had an adequate understanding of the charges to which she was pleading guilty. See United States v. Trott, 779 F.2d 912, 914 (3d Cir. 1985).
The district court also questioned Tannis as to her possession of the cocaine on the date charged in the indictment. This questioning and her answers adequately demonstrated a factual basis for her plea. See App. at 13a-16a; Trott, 779 F.2d at 914. No non-frivolous appellate issue can fairly be presented as to the adequacy of the Rule 11 colloquy.
We likewise find no non-frivolous issue in connection with the sentence the district court imposed. The district court imposed the minimum sentence of ten years required by 21 U.S.C.A. § 841(b) (West Supp. 1991) for possession with intent to distribute 374 grams of a substance containing cocaine base. It had no authority under 18 U.S.C.A. § 3742 (West 1985 & Supp. 1991) to review the reasonableness of the mandatory minimum sentence the statute specifies. Section 3742 furthermore deprives the court of discretion with respect to probation. It provides that a court "shall not place on probation or suspend the sentence of any person sentenced under this subparagraph." 21 U.S.C.A. § 841(b).
18 U.S.C.A. § 3553(e) (West Supp. 1991) gives the district court a limited authority to impose a sentence below the statutory minimum when the government files a motion that sets out a defendant's substantial assistance in the investigation or prosecution of another ...