                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                  NOT PRECEDENTIAL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).



                                              2
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



                                             3
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.




                                              4
