United States v. Ordaz , 184 F. App'x 229 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-13-2006
USA v. Ordaz
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3215
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"USA v. Ordaz" (2006). 2006 Decisions. Paper 910.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 05-3215
___________
UNITED STATES OF AMERICA
v.
BERTO ORDAZ,
also known as POPI
Berto Ordaz,
Appellant
___________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 98-cr-00587)
District Judge: The Honorable Anita B. Brody
___________
Submitted Under Third Circuit LAR 34.1(a)
June 8, 2006
BEFORE: AMBRO, FUENTES, and NYGAARD, Circuit Judges.
(Filed June 13, 2006 )
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
I.
In 1998, a grand jury returned a 47 count indictment against Appellant, Berto
Ordaz, and 17 co-defendants charging them with numerous crimes involving a wide-
ranging drug distribution conspiracy. Ordaz himself was charged with conspiracy to
distribute cocaine and three counts of using a telephone in furtherance of a drug
conspiracy. After trial, the jury returned a verdict of guilty against Ordaz on the
conspiracy count (count 1) and on one count of using a telephone in furtherance of a drug
conspiracy (count 47). Ordaz was subsequently sentenced to 240 months’ imprisonment
on count 1 and 30 months on count 47 to be served consecutively for a total of 270
months. Ordaz appealed to a panel of this Court which affirmed his conviction on count
1 but reversed his conviction on count 47 and remanded for resentencing under United
States v. Booker, 543 U.S. 220 (2005). In the interim, Ordaz filed a petition for certiorari
with the United States Supreme Court which was denied. In 2005, the District Court
again sentenced Ordaz to 240 months’ imprisonment on the conspiracy count. This
appeal followed.
II.
We agree with appellate counsel that Ordaz’s appeal is wholly frivolous and
therefore, accept his brief filed pursuant to Anders v. California, 386 U.S. 738 (1967).
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Appointed appellate counsel who finds a case to be frivolous after a careful examination
of the record must so advise the Court of Appeals and seek permission to withdraw. Id. at
744. Counsel’s request to withdraw must be accompanied by a brief identifying the issues
which are arguably meritorious and may support the appeal. Id. Counsel must identify
any “issues arguably supporting the appeal even though the appeal [is] wholly frivolous,”
Smith v. Robbins, 528 U.S. 259, 285 (2000), explain to the court why they are frivolous,
United States v. Marvin, 211 F.3d 778, 781 (3d Cir. 2001), and demonstrate that he
“thoroughly scoured the record in search of appealable issues,” id. at 780.
Appellate counsel has identified three issues that arguably support Ordaz’s appeal
and explained why they are nevertheless frivolous. We agree. The record shows that
Ordaz was provided with a copy of his appellate counsel’s Anders brief and given the
opportunity to raise any non-frivolous issues in a pro se brief – an opportunity of which
he failed to take advantage. We conclude that appellate counsel has met his obligations
under Anders. Consequently, his motion to withdraw will be granted.
Even if we concluded that the issues identified by appellate counsel were not
frivolous, Ordaz has waived these arguments because he failed to raise them on direct
appeal. An appeal from resentencing does not permit him to raise issues challenging his
conviction because all of those issues should have been raised in his initial appeal. See
United States v. Pultrone, 241 F.3d 306 (3d Cir. 2001). In Pultrone, we held that because
the defendant voluntarily dismissed his direct appeal and thereby failed to pursue his
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claims of error, this Court lacked jurisdiction to review those arguments when he raised
them on appeal following resentencing. “By withdrawing his [initial] notice of appeal,
[Pultrone] has waived his right to appeal issues conclusively established by that
judgment.” Id. at 307 (quoting United States v. Mendes, 912 F.2d 434, 438 (10th Cir.
1990)). Unlike the defendant in Pultrone, Ordaz filed, pursued and followed his direct
appeal through to the end but raised none of the issues challenging his conviction that he
now raises before this Court. We will not entertain these issues at this late date.
Accordingly, the judgment of the District Court resentencing Ordaz to 240 months’
imprisonment on the conspiracy count will be affirmed.
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