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


11-9-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3006




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Recommended Citation
"USA v. Ortiz" (2006). 2006 Decisions. Paper 216.
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                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                __________

                                    No. 04-3006
                                    __________

                         UNITED STATES OF AMERICA

                                          v.

                              MARGARITA ORTIZ,
                                            Appellant
                                 __________

                  On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                        (D.C. Criminal No. 02-cr-00801-9)
                   District Judge: Honorable Harvey Bartle, III
                                    __________

                     Submitted Under Third Circuit LAR 34.1(a)
                              on September 28, 2006

               Before: RENDELL, ROTH, GIBSON*, Circuit Judges.

                             (Filed: November 9, 2006)

                                    __________

                            OPINION OF THE COURT
                                  __________


__________________

   * Honorable John R. Gibson, Judge of the United States Court of Appeals for the
     Eighth Circuit, sitting by designation.
RENDELL, Circuit Judge.

       Margarita Ortiz was charged in a two-count indictment of conspiring to distribute,

and possessing with intent to distribute, one kilogram or more of heroin, in violation of

21 U.S.C. § 846. She pled guilty and entered into a plea agreement in which she agreed

that approximately 600 grams of heroin was distributed in furtherance of the joint

criminal activity undertaken by her and her co-conspirators. The parties also agreed that

she had demonstrated acceptance of responsibility for her offense, and was eligible for a

two-level downward adjustment.

       Ortiz failed, without explanation, to appear for her sentencing hearing, and she was

subsequently arrested in New York City after a bench warrant has been issued for her

arrest. Thereafter, when she appeared for sentencing, the District Court ruled that she

would not be characterized as a minor or minimal participant under section 3D1.2 of the

guidelines, nor did she qualify for acceptance of responsibility, since she had not

appeared at her sentencing hearing. The District Court found that the guideline range was

78 to 97 months, and sentenced her to 78 months’ incarceration. Ortiz filed a pro se

notice of appeal.

       We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       Counsel has filed a brief on appeal pursuant to Anders v. California, 386 U.S. 738

(1967), indicating that there are no non-frivolous issues for appeal.   Ortiz was notified of

her right to file a pro se brief but has not done so. Counsel has also sought permission to

withdraw, and we will grant that motion in a separate order.

                                             2
         In her plea agreement Ortiz waived her right to appeal unless the judge sentenced

her above the statutory maximum or departed upward otherwise from the applicable

guideline range. Neither of these conditions apply.

         Ortiz did not request leave to withdraw her plea, nor has she indicated that it was

involuntary or unknowing. Further, after reviewing the record, counsel concluded that

procedures required for a guilty plea had been followed, and we agree with that

conclusion.

         There can be no argument that the waiver was ineffective, nor are there any facts

from which we could conclude that this is a situation in which the waiver should not be

enforced as part of the plea agreement. See U.S. v. Khattak, 273 F.3d 557, 562 (3d Cir.

2001).

         Accordingly, we will dismiss the appeal.

___________________




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