                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-19-2008

USA v. Borrero
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5446




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Recommended Citation
"USA v. Borrero" (2008). 2008 Decisions. Paper 216.
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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-5446



                           UNITED STATES OF AMERICA
                                          Appellee
                                      v.

                                  FELIX BORRERO,
                                           Appellant



                    On Appeal from the Judgment of Sentence of the
                         United States District Court for the
                           Eastern District of Pennsylvania
                           D.C. Criminal No. 99-cr-00403
                             (Honorable Louis H. Pollak)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 16, 2008

       Before: McKEE and GARTH, Circuit Judges, and IRENAS, District Judge*

                               (Filed November 19, 2008)


                              OPINION OF THE COURT




   *
   The Honorable Joseph E. Irenas, Senior District Judge for the United States District
Court for the District of New Jersey, sitting by designation.
McKee, Circuit Judge.

       Felix Borrero appeals the sentence that the district court imposed upon accepting

Borrero’s guilty plea to conspiring to distribute more than 30 kilograms of heroin.

Borrero’s attorney has filed a motion to withdraw as counsel and has submitted a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating that he has reviewed the

record and found no non-frivolous issues for appeal. Borrero did not file a pro se brief.

We will grant counsel’s motion to withdraw and affirm the judgment of sentence.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Since we write primarily for

the benefit of the parties who are familiar with this case, we need not recite the factual or

procedural background except insofar as may be helpful to our brief discussion.

Borrero admitted to several years of involvement with a heroin distribution organization.

That involvement included conspiring to murder two other members of the organization.

However, after he pled guilty, Borrero cooperated extensively with the government. His

“substantial assistance” caused the government to file a motion for a downward departure

pursuant to U.S.S.G. § 5K1.1 and for relief from the otherwise applicable mandatory

minimum sentence pursuant to 18 U.S.C. § 3553(e).

       After two lengthy sentencing hearings, Judge Pollak imposed a sentence of 30

years imprisonment followed by seven years of supervised release. That sentence was 15

years less than the sentence recommended by the United States Probation Office. The

sentence was consistent with the government’s recommendation of a sentence below the



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otherwise applicable guidelines sentence of life imprisonment, but it was above the 20

year mandatory minimum to which he was exposed to.

       Third Circuit Local Appellate Rule 109.2(a) provides that: “[w]here, 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 . . . .” When counsel submits an Anders brief, we must

determine “(1) whether counsel adequately fulfilled the rule’s requirements; and (2)

whether an independent review of the record presents any nonfrivolous issues.” United

States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).

       In his Anders brief, counsel identifies two potential issues for appeal but concludes

that both are frivolous. The two issues are: (1) whether the district court improperly

enhanced Borrero’s sentence under 21 U.S.C. § 851(a); and (2) whether the district court

failed to properly consider the sentencing factors set forth in 18 U.S.C. § 3553(a). After

independently reviewing the record, we agree with defense counsel’s contention that

neither of these issues has merit.

       Borrero’s sentence was not improperly enhanced pursuant to 18 U.S.C. § 851. As

counsel correctly points out, the PSR did not rely upon any prior convictions in

recommending that Borrero’s sentence be enhanced, and the court did not rely upon that

statute. Moreover, as we explained in United States v. Lynch, 158 F.3d 195, 197-98 (3d

Cir. 1998), Borrero’s argument misinterprets § 851.



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         Moreover, a careful review of the sentencing transcript makes clear that Judge

Pollak carefully considered the sentencing factors set forth in § 3553(a). The district

court considered all of the statutory factors, as well as the nature and extent of Borrero’s

cooperation with law enforcement. Moreover, the court expressly articulated its concern

that the sentence not be any longer than appropriate to achieve the sentencing objectives.

We therefore agree with defense counsel that Borrero has no meritorious challenge to the

reasonableness of the sentence he received.

         For the foregoing reasons, we will affirm the judgment of sentence. We will also

grant defense counsel’s motion to withdraw. There are no issues that require counsel to

file a petition for writ of certiorari with the Supreme Court. See Third Circuit L.A.R.

109.2.




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