                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-11-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2841




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"USA v. Orozsco" (2006). 2006 Decisions. Paper 764.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/764


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                                                   NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                         No. 04-2841




              UNITED STATES OF AMERICA

                              v.

                   ANTONIO OROZSCO,
                 a/k/a EDWIN FARINACCI,
                     a/k/a EL MONSTRO
                  (D.C. No. 02-cr-00801-13)


              UNITED STATES OF AMERICA

                              v.

                   ANTONIO OROZSCO
                 a/k/a EDWIN FARINACCI
                    (D.C. No. 04-cr-00163)

                       Antonio Orozsco,
                                 Appellant



        On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
           (D.C. Nos. 02-cr-00801-13, 04-cr-00163)
         District Judge: Honorable Harvey Bartle, III




          Submitted Under Third Circuit LAR 34.1(a)
                       July 10, 2006
              Before: SLOVITER, McKEE, and RENDELL, Circuit Judges.

                                   (Filed: July 11, 2006)


                                         OPINION


SLOVITER, Circuit Judge.

       Antonio Orozsco pled guilty in Criminal No. 02-801-13 (Eastern District of

Pennsylvania) to conspiring to distribute and possess with intent to distribute, one

kilogram or more of heroin in violation of 21 U.S.C. § 846. Orozsco stipulated in the

plea agreement that the conspiracy involved more than 20 kilograms of heroin. Orozsco

also pled guilty to an information in Criminal No. 04-163-01 (Eastern District of

Pennsylvania) which separately charged him with distribution of heroin in violation of 21

U.S.C. § 841(a)(1) and aiding and abetting in violation of 18 U.S.C. § 2. Orozsco

stipulated in connection with the separate charge that he distributed approximately 95.81

grams of heroin. The cases were consolidated for sentencing.

       Orozsco also agreed that he would not appeal unless he was sentenced in excess of

the statutory maximum or unless the District Court based his sentence on an upward

departure. The sentence ultimately imposed did not violate either of those conditions.

The statutory maximum sentence in this case was life imprisonment. In sentencing

Orozsco, the District Court found that the base offense level was 36, and that Orozsco

qualified for the safety valve adjustment under § 5C1.2 of the Sentencing Guidelines



                                             2
which permitted the sentencing court to depart downward two levels. Because Orozsco

had accepted responsibility, the District Court departed downward three additional levels

reaching a total offense level of 31 and a criminal history category of I. The Government

moved for a downward departure, and although the applicable Guideline range was

108-135 months of imprisonment based on the facts to which Orozsco stipulated, the

Court, after granting the Government’s departure motion, imposed a term of

imprisonment of 60 months, a 5-year term of supervised release, and a special assessment

of $200.

       Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967).

Under Anders, if, after review of the district court record and a conscientious

investigation, counsel is convinced that the appeal presents no issue of arguable merit,

counsel may properly ask to withdraw while filing a brief referring to anything in the

record that might arguably support the appeal. See id. at 741-42, 744. To satisfy the

Anders requirements, appellant’s counsel must “satisfy the court that he or she has

thoroughly scoured the record in search of appealable issues” and then “explain why the

issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000)

(citation omitted). Although Orozsco was advised of his right to file a pro se brief in this

court, he has not done so. Thus, we are left with counsel’s statement that he has

thoroughly examined the record for appealable issues, including issues pertaining to the

voluntariness of defendant’s plea, Sentencing Guidelines issues, and issues presented



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under Blakely v. Washington, 542 U.S. 296 (2004), and has asked for permission to

withdraw as counsel.

       The Government recognizes that there is an arguable issue in that the Sentencing

Guidelines were applied by the District Court as mandatory. At the time of Orozsco’s

sentencing hearing, the Supreme Court had not yet issued its decision in United States v.

Booker, 543 U.S. 220 (2005). We would ordinarily remand so that the District Court

could reconsider its sentence, see United States v. Davis, 407 F.3d 162 (3d Cir. 2005) (en

banc), but in this case we see no need to remand the matter of sentencing because

Orozsco has waived any such issue. See United States v. Lockett, 406 F.3d 207, 214 (3d

Cir. 2005) (holding that “where a criminal defendant has voluntarily and knowingly

entered into a plea agreement in which he or she waives the right to appeal, the defendant

is not entitled to resentencing in light of Booker”). Orozsco is therefore not entitled to

resentencing.

       The Government has filed a motion to dismiss the appeal in light of the waiver.

This court has upheld waivers of appeal if knowing and voluntary. See United States v.

Khattak, 273 F.3d 557 (3d Cir. 2001). In this case, we choose to examine the record

because the appeal is based on an Anders brief. We have examined any other possible

issue and agree with counsel that, with the exception of the waived Booker issue, there

are no nonfrivolous issues raised. As counsel states, the plea colloquy was adequate and

Orozsco gave a knowing, voluntary, and informed admission to the charges, and he



                                              4
knowingly and voluntarily waived his right to appeal. His sentence of 60 months is

considerably below the minimum sentence the Presentence Report calculated. Indeed, the

only enhancement suggested was based on possession of a firearm, but after Orozsco

objected, the District Court sustained the objection. Thus that enhancement was not part

of defendant’s Guideline range calculation.

      Because we agree that there are no nonfrivolous issues for Orozsco’s appeal, we

will affirm the judgment of conviction and sentence, and we will grant counsel’s motion

to withdraw.




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