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Precedential or Non-Precedential: Non-Precedential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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Recommended Citation
"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NOT PRECEDENTIAL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
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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
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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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