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IN THE UNITED STATES COURT OF APPEALS FOR …

_____ _____ _____ _____ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT CASE NO. 04-20724 UNITED STATES OF AMERICA, Plaintiff Appellee, v. EVARISTO BELTRAN RODRIGUEZ Defendant Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BRIEF OF APPELLANT PURSUANT TO ANDERS v. CALIFORNIA, 386 738 (1967) F. CLINTON BRODEN Broden & Mickelsen 2707 Hibernia Dallas, Texas 75204 214-720-9552 214-720-9594 (facsimile) Attorney for Appellant Evaristo Beltran Rodriguez _____ CERTIFICATE OF INTERESTED PERSON

in the united states court of appeals for the fifth circuit case no. 04-20724 united states of america, plaintiff–appellee, v. evaristo beltran rodriguez

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Transcription of IN THE UNITED STATES COURT OF APPEALS FOR …

1 _____ _____ _____ _____ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT CASE NO. 04-20724 UNITED STATES OF AMERICA, Plaintiff Appellee, v. EVARISTO BELTRAN RODRIGUEZ Defendant Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BRIEF OF APPELLANT PURSUANT TO ANDERS v. CALIFORNIA, 386 738 (1967) F. CLINTON BRODEN Broden & Mickelsen 2707 Hibernia Dallas, Texas 75204 214-720-9552 214-720-9594 (facsimile) Attorney for Appellant Evaristo Beltran Rodriguez _____ CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case.

2 These representations are made in order that the Judges of this COURT may evaluate possible disqualifications or recusal. Appellant, EVARISTO BELTRAN RODRIGUEZ, pled guilty and was sentenced before the Honorable DAVID HITNER, UNITED STATES District Judge for the Southern District of Texas. Appellant was represented below by DICK WHELLAN and is represented on appeal by F. CLINTON BRODEN of the law firm BRODEN & MICKELSEN. The Appellee, the UNITED STATES of America, was represented in the proceedings below by TED IMPERATO, Assistant UNITED STATES Attorney for the Southern District of Texas and is represented on appeal by JAMES TURNER, Assistant UNITED STATES Attorney for the Southern District of Texas.

3 F. Clinton Broden STATEMENT REGARDING ORAL ARGUMENT Oral argument is not requested. Counsel has moved to withdraw and has filed this brief pursuant to Anders v. California, 386 738 (1967). After careful study of the record and the applicable law, it is the good faith belief and professional opinion of counsel that this case presents no meritorious points for appeal on which the Appellant could possibly prevail. TABLE OF CONTENTS Page No.

4 CERTIFICATE OF INTERESTED PERSONS i STATEMENT REGARDING ORAL ARGUMENT ii TABLE OF CONTENTS iii TABLE OF AUTHORITIES iv STATEMENT OF JURISDICTION 1 STATEMENT OF THE ISSUE 2 STATEMENT OF THE CASE 3 A. Proceedings Below 3 B. Statement of the Facts 3 SUMMARY OF ARGUMENT 5 ARGUMENT 6 MR. RODRIGUEZ'S PLEA OF GUILTY WAS VOLUNTARILY MADE PURSUANT TO RULE 11 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE. 6 CONCLUSION 9 CERTIFICATE OF SERVICE 11 TABLE OF AUTHORITIES Page No.

5 Cases Anders v. California, 386 738 (1967) ii, 9 Baker v. UNITED STATES , 781 85 (6th Cir. 1985), cert. denied, 479 1017 (1986) 7 Boykin v. Alabama, 395 238 (1969) 8 McCarthy v. UNITED STATES , 394 459 (1969) 8 UNITED STATES v. Dayton, 604 931 (5th Cir. 1979) (en banc), cert. denied, 445 904 (1980) 7-8 UNITED STATES v. Howard, 991 195 (5th Cir. 1993 6 Statutes 18 924(c) 3 18 3742 1 21 841(a)(1), 3 28 1291 1 Fed. R. Crim. P. 11 passim. STATEMENT OF JURISDICTION The jurisdiction of this COURT may be invoked pursuant to 28 1291 as an appeal from a final judgment entered by the UNITED STATES District COURT for the Southern District of Texas.)

6 Furthermore, jurisdiction to review the sentence imposed in this case may be invoked pursuant to 18 3742(a) as an appeal of a sentence imposed under the Sentencing Reform Act of 1984. STATEMENT OF THE ISSUE Whether Mr. Rodriguez s plea of guilty was voluntarily made pursuant to Fed. R. Crim. P. 11. STATEMENT OF THE CASE A.

7 Proceedings Below On March 1, 2004, the Appellant, Evaristo Beltran Rodriguez, and Ismael Moreno Rodriguez were charged in a three count indictment. Evaristo Rodriguez was charged in Count 1 with possessing with the intent to distribute more than 500 grams of cocaine, in violation of 21 841(a)(1), and in Count 2 with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 924(c), Evaristo Rodriguez was not charged in Count 3. See Excerpts at Mr. Rodriguez subsequently entered a guilty plea to both counts.

8 On August 6, 2004, the Honorable David Hitner sentenced Mr. Rodriguez to sixty months of imprisonment on Counts 1 and 2 to run consecutively, a five year term of supervised release and a $200 mandatory special assessment. See Excerpts at 4. Mr. Rodriguez filed a timely notice of appeal on August 12, 2004 and this appeal follows. Id. at 2. B. Statement of the Facts In connection with his guilty plea, Mr. Rodriguez admitted the following facts to be correct: 11 References to the Record Excerpts ("Excerpts") refer to the tab number. References to the Record ("Rec.)

9 ") refer to the volume number:tab number. The transcript of Mr. Rodriguez s guilty plea can be found at Volume III of the record and in the Excerpts at Tab 5. If this matter had gone to trial, the government would prove beyond a reasonable doubt that on January 29, 2004, Oscar Garcia, an officer working with the DEA, acting in an undercover capacity, contacted Evaristo and was informed that Evaristo would sell three kilograms to Officer Garcia the next day.

10 January 30, 2004, DEA set up surveillance of Evaristo s residence and followed Evaristo and Ismael Rodriguez, who drove to the Food Town Grocery Store, located in Houston, Southern District of Texas. Officer Garcia met with Evaristo at the location and entered his vehicle. While inside Evaristo s vehicle, Garcia observed a firearm between Evaristo s legs and cocaine in the pocket of Evaristo s jacket. Officer Garcia exited Evaristo s vehicle and instructed the other agents to initiate a traffic stop of Evaristo s vehicle, as well as Ismael s vehicle.


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