NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-2580

No. 08-3681

No. 08-4575

 

UNITED STATES OF AMERICA

v.

FELIX ORTIZ-GARCIA,

ENRIQUE RAMOS-SANCHEZ,

CAESAR HERNANDEZ,

Appellants

 

On Appeal from the United States District Court 

 for the Middle District of Pennsylvania

 (D.C. No. 1-07-cr-103-004)

 (D.C. No. 1-07-cr-103-003)

(D.C. No. 1-07-cr-103-002)

District Judge: Honorable John E. Jones III

 

Submitted under Third Circuit L.A.R. 34.1(a)

on November 17, 2009

Before: AMBRO, ALDISERT and ROTH, Circuit Judges

(Opinion Filed: June 8, 2010)

 

OPINION OF THE COURT 

 
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231.We have 1

appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

2

ALDISERT, Circuit Judge.

Defendant-Appellants Felix Ortiz-Garcia, Enrique Ramos-Sanchez and Caesar

Hernandez appeal from judgments of conviction entered and sentences imposed by the

District Court for the Middle District of Pennsylvania. After each appellant’s arrest on 1

drug-related charges, each pled guilty pursuant to a written plea agreement with the

United States Government, each was sentenced by the Honorable John E. Jones III, and

each appealed. Subsequently, counsel for Ortiz-Garcia and counsel for Hernandez moved

to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), each asserting that no

nonfrivolous argument can be made in this Court. Appointed counsel for Ramos-Sanchez

has filed a brief on the merits. 

For the reasons that follow, we will affirm.

I.

On February 6, 2007, Justin Raudebaugh died from ingesting heroin laced with

fentanyl, a synthetic opioid approximately 100 times more potent than heroin. On

February 15, 2007, Kristin Podolski died from ingesting the same. Each victim was found

with individual heroin packages stamped “Devil’s Reject,” and an investigation ensued.

Government agents learned from two sources that Ortiz-Garcia, known as “Andy,”

was selling heroin from his residence in Harrisburg. Thereafter, a confidential informant
3

purchased “Devil’s Reject” heroin from Ortiz-Garcia in a controlled buy. Police obtained

a warrant to search Ortiz-Garcia’s residence and recovered a handgun, four bundles of

“Devil’s Reject” heroin and $880 in cash, including marked bills from the controlled buy.

Laboratory tests confirmed that the heroin contained fentanyl.

After his arrest, Ortiz-Garcia waived his Miranda rights and admitted that he had

been selling heroin since 2006. He admitted that he sold heroin to Podolski, but denied

selling to Raudebaugh. Ortiz-Garcia immediately began cooperating with the Government

and identified Ramos-Sanchez as one of his suppliers.

On February 27, 2007, Isaac Kennedy and Katy Rhoads died from acute fentanyl

toxicity. Investigators determined that Thomas Sweger had supplied the fentanyl to

Kennedy, and Sweger was arrested after he sold agents pure fentanyl in a controlled buy.

Sweger waived his Miranda rights and informed agents that his supplier was RamosSanchez. Agents additionally learned that a juvenile had sold heroin to Rhoads shortly

before her death. When confronted, the juvenile confessed and identified Ramos-Sanchez

as his supplier.

On March 7, 2007, agents made a controlled buy from Ramos-Sanchez using a

confidential informant. Subsequently, agents went to the Ramos-Sanchez residence,

obtained consent to search, and found three ounces of fentanyl. Ramos-Sanchez was

advised of his rights and confessed, confirming that he had been supplying heroin to

Ortiz-Garcia, Sweger, the juvenile and others. 
4

Ramos-Sanchez reported that his own source of supply was “Aventura,” later

identified as Caesar Hernandez. Agents arrested Hernandez on June 5, 2007 in

Philadelphia and obtained a confession. Hernandez admitted that he supplied heroin to

Ramos-Sanchez, acting as a middleman between Ramos-Sanchez and larger heroin

suppliers. Hernandez confirmed that he had been supplying heroin to Ramos-Sanchez

every two to three weeks dating back to 2006.

On May 9, 2007, a grand jury in Harrisburg returned a thirteen-count superseding

indictment charging Caesar Hernandez, Enrique Ramos-Sanchez, Felix Ortiz-Garcia and

others with multiple counts relating to the unlawful distribution of heroin and fentanyl

and conspiracy to do the same. The indictment alleged that the defendants’ conduct

caused the deaths of four individuals. 

All three defendants entered into plea agreements with the Government, the terms

of which varied. Common to all agreements, each defendant agreed to cooperate with the

Government, which in turn would move for a downward departure from the Sentencing

Guidelines for cooperation amounting to “substantial assistance.” See U.S.S.G. § 5K1.1.

Each pled guilty, each was sentenced, and each now appeals.

II.

Felix Ortiz-Garcia, No. 08-2580

Pursuant to his agreement with the Government, on October 23, 2007, OrtizGarcia pled guilty to Counts 3 and 13 of the superseding indictment. Count 3 charged the
5

unlawful distribution of heroin and fentanyl in violation of 21 U.S.C. § 841(a)(1), which

carried a statutory maximum sentence of 20 years. Count 13 charged him with making

materially false statements to the United States Department of Housing and Urban

Development by concealing his drug trafficking activities while living in federally

subsidized housing, in violation of 18 U.S.C. §§ 1101 and 1102, punishable by up to 10

years’ imprisonment. After a lengthy colloquy at the plea change hearing, the Court

accepted Ortiz-Garcia’s plea.

As agreed, the Government moved at sentencing for a downward departure,

pursuant to U.S.S.G. § 5K1.1, in recognition of Ortiz-Garcia’s substantial assistance.

The Court granted the motion and departed 59 months below the otherwise-applicable

Guidelines range, a greater departure than the Government had recommended. After a

detailed colloquy, Ortiz-Garcia was sentenced to 151 months’ imprisonment, followed by

supervised release, and restitution. All other charges were dismissed.

Against counsel’s advice, Ortiz-Garcia ordered counsel to file the instant appeal.

Thereafter, Ortiz-Garcia’s counsel moved to withdraw as counsel pursuant to Third

Circuit Local Appellate Rule 109.2, attesting that he could not identify any nonfrivolous

arguments to raise before this Court. In support of that motion, he has filed a

supplementary brief with this Court, as required under Anders. See United States v.

Youla, 241 F.3d 296, 299-300 (3d Cir. 2001) (citing Anders, 386 U.S. at 745).

Additionally, consistent with Anders, Ortiz-Garcia was furnished a copy of counsel’s
6

brief and was informed of his right to raise additional points via an informal brief. OrtizGarcia has not done so.

In Anders, the Supreme Court established guidelines for a lawyer seeking to

withdraw from a case when the indigent criminal defendant he represents wishes to

pursue frivolous arguments on appeal. Youla, 241 F.3d at 299 (citing Anders, 386 U.S. at

745). If after a conscientious examination of the record, counsel determines that his

client’s case is wholly frivolous, he should advise the court and request permission to

withdraw. Id. In addition, counsel must file an Anders brief which: (1) satisfies the court

that counsel has thoroughly examined the record in search of appealable issues; and (2)

explains why each arguably appealable issue is frivolous. Id. at 300. Our Local Appellate

Rule 109.2(a) tracks these requirements.

When an appeal proceeds under Anders, our inquiry is twofold. First, we must

evaluate whether counsel’s brief fulfills the Anders requirements. Id. Second, we assess

whether an independent review of the record presents any nonfrivolous issues. Id. If we

agree that the appeal is without merit, we will grant trial counsel’s Anders motion and

dismiss the appeal without appointing new counsel. Id. (citing Third Circuit L.A.R.

109.2(a)). By contrast, if we find any of the legal points arguable on their merits (and

therefore not frivolous), we must afford the indigent the assistance of counsel to argue the

appeal. Id. (quoting Anders, 386 U.S. at 744).

Our review satisfies us that the brief submitted by Ortiz-Garcia’s counsel meets the
7

Anders requirements. Consistent with Anders, counsel filed a thorough brief that

demonstrates he has conscientiously examined the record in search of appealable issues.

Counsel identifies three issues that might arguably support an appeal: (1) subject matter

jurisdiction; (2) the validity and voluntariness of Ortiz-Garcia’s guilty plea; and (3) the

legality of the sentence. Thereafter, counsel explains why each issue is frivolous.

As to jurisdiction, counsel argues that any objection would be frivolous because a

federal offense was charged. We agree.

As to plea validity, counsel argues that the Court’s painstaking colloquy ensured

the voluntariness of the plea, consistent with the governing standards of Boykin v.

Alabama, 395 U.S. 238 (1969), and Rule 11 of the Federal Rules of Criminal Procedure.

Directing us to the relevant portions of the transcripts, counsel argues that the Court’s

colloquy assured that Ortiz-Garcia understood the charges, the Government’s factual

allegations, the rights he waived by pleading guilty, the minimum and maximum terms of

imprisonment, the advisory nature of the Sentencing Guidelines, and the circumstance

that his plea could not be withdrawn. Thereafter, the Court expressly found that OrtizGarcia entered the plea voluntarily and understood both his rights and the consequences

of entering a guilty plea. Counsel contends that this procedure ensured the voluntariness

of Ortiz-Garcia’s plea and that any argument to the contrary would be frivolous. We

agree.

With respect to sentencing, counsel argues that the thorough sentencing colloquy
8

forecloses any argument that the sentence was either procedurally flawed or substantively

unreasonable. Prior to the hearing, the Court granted Ortiz-Garcia’s motion to foreclose

the Government from introducing evidence that his conduct caused Raudebaugh’s death,

making him legally responsible only for Podolski’s death. Then, at the sentencing

hearing, the Court properly performed the three-step sentencing procedure required under

United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). The Court (1) arrived at a 210-

to 262-month Guidelines range using an offense level of 37 and a category I-level

criminal history; (2) ruled on outstanding motions and adjusted the Guidelines range

accordingly; and (3) thoroughly considered each of the relevant sentencing factors under

28 U.S.C. § 3553(a). See id. Finally, counsel observes that Ortiz-Garcia’s 151-month

sentence, which was at the low end of the Guidelines range, was substantively reasonable

in light of the § 3553(a) factors, and particularly, the seriousness of the crime and the

resulting death. We agree. 

After examining counsel’s brief, we conclude that it appears adequate on its face.

Additionally, our own independent review satisfies us that no nonfrivolous appealable

issues exist. Accordingly, we will grant counsel’s motion for withdrawal, dismiss OrtizGarcia’s appeal and affirm his conviction and sentence.

III.

Enrique Ramos-Sanchez, No. 08-3681

Pursuant to his written plea agreement with the Government, on November 8,
9

2007, Ramos-Sanchez pled guilty to Count 12 of the superseding indictment, charging a

conspiracy to distribute heroin and fentanyl that caused the deaths of four individuals.

The charged offense carried a maximum sentence of lifetime imprisonment, and the

initial Guidelines range was 240 to 262 months. 

At sentencing, the Government moved for a downward departure in the Guidelines

range pursuant to U.S.S.G. § 5K1.1, in recognition of Ramos-Sanchez’s substantial

assistance. The Court granted the motion for a 30-month downward departure, reducing

the Guidelines range to 210 to 262 months. Thereafter, the Court entertained argument

from both sides, considered Ramos-Sanchez’s plea for leniency, and reviewed

comprehensively the § 3553(a) factors. After a detailed colloquy, the Court sentenced

Ramos-Sanchez to the Guidelines minimum of 210 months’ imprisonment, followed by

supervised release, and restitution. Ramos-Sanchez appealed.

Unlike counsel for Ortiz-Garcia and counsel for Hernandez, counsel for RamosSanchez did not move to withdraw and instead has filed a brief on the merits. Through his

appointed counsel, Ramos-Sanchez contends that the District Court abused its sentencing

discretion in imposing a sentence that was both procedurally flawed and substantively

unreasonable. See Jones, 566 F.3d at 365-366. In particular, he assigns error to the

District Court’s failure to “properly and sufficiently consider appellant’s substantial

cooperation with the government” and the unwarranted disparity between his sentence

and that of codefendant Ortiz-Garcia. (Ramos-Sanchez Br. 9 (citing 18 U.S.C. §
10

3553(a)).) We disagree and hold that the District Court did not abuse its considerable

sentencing discretion.

The Court’s sentencing procedure was a textbook application of the three-step

sentencing process we announced in Gunter, 462 F.3d at 247. Before imposing RamosSanchez’s sentence, the Court (1) calculated a 240- to 262-month Guideline range based

on an offense level of 38 and a category III-level criminal history; (2) ruled on both

parties’ outstanding motions, granting a 30-month downward Guidelines departure for

substantial assistance; and (3) adequately considered the relevant § 3553(a) factors. See

id. In its § 3553(a) analysis, the Court specifically addressed Ortiz-Garcia’s argument for

a further downward departure given his substantial assistance, his acceptance of

responsibility, and the more lenient sentence of his codefendant Ortiz-Garcia. The Court

carefully explained its reasons for declining to depart further from the Guidelines range,

emphasizing the severity of the offense, Ramos-Sanchez’s criminal history, and his

involvement in conduct that ultimately resulted in four deaths. The extensive colloquy is

more than procedurally adequate.

In addition, the sentence imposed was substantively reasonable. The Court

sentenced Ramos-Sanchez to a term of imprisonment at the low end of the Guidelines

range, after granting a 30-month downward departure. To the extent that Ramos-Sanchez

argues this downward adjustment should have been greater, we lack jurisdiction to review

that claim. United States v. Torres, 251 F.3d 138, 145 (3d Cir. 2001) (“[W]e lack
11

jurisdiction to review the extent of a District Court’s discretionary downward departure

for substantial assistance to the government.”). 

Moreover, the disparity between the sentences of Ortiz-Garcia and Ramos-Sanchez

was warranted. Ortiz-Garcia’s 151-month sentence – a 59-month departure from the

Guideline range of 210 to 262 months – reflected the circumstances that he was a

category I-level criminal offender and had caused the death of only one individual. Unlike

Ortiz-Garcia, Ramos-Sanchez had a category III-level criminal history and an offense

level of 38, he was a “dealer’s dealer,” and he was legally responsible for four deaths.

(Gov’t/Ramos-Sanchez App. 107.) The Court considered Ramos-Sanchez’s arguments for

leniency, but determined that the circumstances did not warrant a further departure from

the Guidelines range. In our view, the District Court acted well within its discretion in

sentencing Ramos-Sanchez to 210 months’ imprisonment, a term 30 months below the

Guidelines minimum. We will affirm Ramos-Sanchez’s conviction and his sentence.

IV

Caesar Hernandez, No. 08-4575

Pursuant to his plea agreement, on June 2, 2008, Hernandez pled guilty to Count

12 of the superseding indictment, which charged conspiracy to distribute and possess with

intent to distribute heroin and fentanyl.

Although Hernandez’s advisory Guidelines range was 168 to 210 months, based

on an offense level of 35 and a category I-level criminal history, the statutory minimum
12

sentence was 20 years. Therefore, the Guidelines advisory sentence was 240 months. As

agreed, the Government filed a motion pursuant to U.S.S.G. § 5K1.1, recommending a

30-month downward departure in recognition of Hernandez’s substantial assistance to the

Government. The Court granted the motion and imposed a sentence of 210 months’

incarceration, followed by three years of supervised release, and restitution. Hernandez

appealed.

Like counsel for Ortiz-Garcia, Hernandez’s counsel moves this Court to withdraw

as counsel, pursuant to L.A.R. 109.2, and has filed an Anders brief with this Court. As

discussed above, we inquire first whether counsel’s brief adequately fulfills the Anders

requirements, and second, whether an independent review of the record presents any

nonfrivolous issues. See Youla, 241 F.3d at 299 (citing Anders, 386 U.S. at 745). Because

Hernandez filed an informal brief, we must consider his arguments as well.

Unlike counsel for Ortiz-Garcia, Hernandez’s counsel “has not provided us with

sufficient indicia that he has explored all possible issues for appeal.” Marvin, 211 F.3d at

781. To begin, counsel purports to identify four arguably appealable issues: (1)

jurisdiction, (2) plea validity, (3) sentence legality, and (4) ineffective assistance of

counsel, but never addresses the District Court’s jurisdiction. Although the federal

charges at issue render the jurisdictional issue manifestly frivolous, this omission leaves

us with doubts as to the thoroughness of counsel’s review. 

Most problematically, counsel’s brief shares most of the deficiencies that doomed 
13

the Anders brief in Youla, 241 F.3d at 299-301. There we rejected an Anders brief that

contained a mere two pages of argument, cited little or no case law, and did not mention

the arguments raised in the appellant’s informal brief. Id. Much like the brief in Youla,

Hernandez’s Anders brief contains a mere two pages of argument, provides only one

citation to the record, and cites legal authorities cursorily and without reference to the

underlying facts. Counsel’s failure to engage with the governing legal authorities is most

problematic in his “analysis” of the procedural propriety of Hernandez’s sentencing.

Although counsel’s brief acknowledges United States v. Booker, 543 U.S. 220 (2005), it

ignores our precedents in Jones, 566 F.3d at 366, and Gunter, 462 F.3d at 247, which

describe this Court’s method for reviewing a district court’s sentencing decisions. An

Anders brief is insufficient if it fails to analyze the issues or “argue[s] the purportedly

frivolous issues aggressively without explaining the faults in the arguments.” Marvin, 211

F.3d at 781. In our view, Youla commands the conclusion that the Anders brief submitted

by Hernandez’s counsel is insufficient.

Given these inadequacies, we must reject counsel’s Anders brief unless we are

convinced that “frivolousness is patent.” Id. We are. After considering Hernandez’s

informal brief and conducting our own review, we are persuaded that Hernandez can

present only patently frivolous issues for appeal.

We first address the argument raised in Hernandez’s informal brief, namely, that

his plea was not knowing and voluntary. Hernandez, who speaks no English, had an
14

interpreter at his plea-change and sentencing hearings, but contends that he did not

understand the charges against him. Hernandez also contends that the District Court had a

duty to appoint him a bilingual attorney. He argues further that he agreed to the plea

bargain in reliance on his attorney’s assurance that the deal provided for “a sentence of

not less than five (5) years and no more than (10) years.” (Hernandez Br. at pt. II.) He

contends that each of these circumstances deprived his plea of its voluntary character.

We disagree. To overcome his English-language difficulties, Hernandez had the

benefit of an interpreter, and the Court paused the proceedings at least two times when it

appeared Hernandez needed additional assistance. (Gov’t/Hernandez App. 5, 7.) While

under oath, Hernandez answered affirmatively the Court’s question whether his attorney

had explained the plea agreement paragraph-by-paragraph, with the aid of a translator.

(Id. at 7.) Likewise, he answered affirmatively the Court’s questions whether he (1)

understood the charge and the elements of the offense (id. at 4, 16); (2) agreed to the

contents of the plea agreement (id. at 7-8); (3) was voluntarily pleading guilty (id. at 10);

(4) knew the minimum and maximum terms of imprisonment (id. at 11-12); (5) knew he

was likely to be deported (id. at 11); (6) agreed with the Government’s factual allegations

(id. at 20); and (7) desired to forego a jury trial (id.). He answered negatively the Court’s

questions whether his decision to plead guilty was induced by threats, promises, force or

offers. (Id. at 10.) Based on this record, it would be patently frivolous to argue that

Hernandez’s plea was involuntary because he did not understand English. We also find
15

frivolous Hernandez’s asserted right to a bilingual attorney. This Court has not

recognized such a right. See Gov’t of V.I. v. Martinez, 847 F.2d 125, 127 (3d Cir. 1988).

We also dismiss Hernandez’s contention that his plea was rendered involuntary by

his attorney’s alleged assurance that he would receive a five- to ten-year sentence. We

have held that “[a]n erroneous prediction of a sentence by defendant’s counsel does not

render a guilty plea involuntary,” particularly where the “[d]efendant acknowledged when

pleading that he was aware that he could be sentenced to [the maximum term of

imprisonment].” See Masciola v. United States, 469 F.2d 1057, 1059 (3d Cir. 1972).

Here, the Court expressly informed Hernandez of the 20-year statutory minimum sentence

and of the non-binding nature of both parties’ sentencing recommendations.

(Gov’t/Hernandez App. 10-11, 12, 14-15.) Addressing Hernandez, the Court asked: “And

do you understand that no one can guarantee you the actual sentence that you’ll get from

me, that that’s up to me?” (Id. at 11.) Hernandez replied: “Yes.” (Id.) The record simply

does not support any nonfrivolous argument that counsel’s alleged assurances rendered

Hernandez’s plea involuntary.

Finally, to the extent we can construe Hernandez’s brief to allege ineffective

assistance of counsel, that argument cannot be raised on direct appeal, as the record is

insufficient to support such a claim. See United States v. Headley, 923 F.2d 1079, 1083

(3d Cir. 1991) (citation omitted). Hernandez remains free to raise this argument via a

petition pursuant to 28 U.S.C. § 2255.
We are disappointed in the Anders brief and the Government’s brief, which both 2

confidently assert that the District Court’s colloquy complied with Rule 11. 

Because Hernandez lodged no Rule 11 objection in the plea change hearing, we 3

review these Rule 11 violations for plain error. United States v. Vonn, 535 U.S. 55, 59

(2002). “Plain error requires that there must be (1) error, (2) that is plain or obvious, and

(3) that affects a defendant’s substantial rights. If all three conditions are met, an

appellate court may then exercise its discretion to notice a forfeited error, but only if (4)

the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Goodson, 544 F.3d 529, 539 (3d Cir. 2008) (quoting

Johnson v. United States, 520 U.S. 461, 467 (1997)) (alterations and internal citations

omitted). The burden is on the defendant to persuade us that any error affected his

substantial rights. United States v. Adams, 252 F.3d 276, 285 (3d Cir. 2001). In the

context of allegedly plain error under Rule 11, Hernandez would be required to “show a

reasonable probability that, but for the error, he would not have entered the [guilty] plea.”

Benitez, 542 U.S. at 83.

16

We are persuaded by our own independent review that no nonfrivolous appealable

issues exist. Although we note the Court did not comply perfectly with Rule 11 of the

Federal Rules of Criminal Procedure, these shortcomings were insufficient to render the

plea involuntary. In particular, the District Court failed to explicitly inform Hernandez 2

of: (1) his right to persist in his plea of not guilty, Rule 11(b)(1)(B); (2) his right to

counsel at every stage of trial and appellate proceedings, Rule 11(b)(1)(D); and (3) the

Court’s authority to order restitution, Rule 11(b)(1)(K). But because no Rule 11 objection

was lodged at the hearing, these errors do not render Hernandez’s plea involuntary unless

Hernandez can “show a reasonable probability that, but for the error, he would not have

entered the [guilty] plea.” United States v. Benitez, 542 U.S. 74, 83 (2004). On this 3

record, we conclude that he cannot do so.

Although the District Court did not explicitly inform Hernandez of his right to
17

persist in his plea of not guilty, the Court made it clear that the purpose of the plea change

hearing was to determine whether Hernandez would choose to plead guilty or not. (See,

e.g., Gov’t/Hernandez App. 15 ¶ 14-25.) Our review persuades us that Hernandez

understood his right to plead not guilty. This Rule 11 error, therefore, did not affect

Hernandez’s substantial rights.

The District Court also failed to inform Hernandez of both the Court’s authority to

order restitution and his right to an attorney at all stages of the proceedings. Rule

11(b)(1)(D), (K). Although these lapses clearly contravene Rule 11, the record does not

suggest a reasonable probability that, absent these errors, Hernandez would not have pled

guilty. See Benitez, 542 U.S. at 83; United States v. Lovett, 844 F.2d 487, 492 (7th Cir.

1988) (holding that the district court’s failure to inform the defendant of his right to

counsel was harmless). Hernandez was represented by appointed counsel at the time he

entered his plea, suggesting he was aware of an indigent defendant’s right to

representation in criminal proceedings. Moreover, Hernandez pled guilty after being

informed that the Court could fine him up to $4 million, suggesting his decision to plead

guilty would not be affected by the prospect of paying restitution. In view of Hernandez’s

clear statement that he committed the crime charged and the myriad evidence against him,

we do not believe either of these errors affected his decision to plead guilty.

Our review additionally persuades us that Hernandez’s sentencing was free of

error. As was procedurally required under Gunter, 462 F.3d at 247, the Court (1) arrived
18

at an advisory Guidelines point of 240 months based on the statutory minimum sentence

of 20 years; (2) granted the Government’s motion for a 30-month downward departure

under U.S.S.G. § 5K1.1, reducing the Guidelines point to 210 months; and (3) considered

each of the relevant § 3553(a) factors. (Gov’t/Hernandez App. 15.) The Court imposed a

210-month sentence, explaining that the sentence was warranted given the severity of the

offense; Hernandez’s responsibility for the deaths of four individuals; the need for

deterrence; the need to protect the public; and the sentences of Hernandez’s codefendants,

who were lower-level dealers. The Court noted Hernandez’s lack of criminal history and

his plea for leniency, but determined “there is utterly nothing in front of me that would

cause me to vary from the advisory Guideline range.” (Id. at 17.) In our view, this

colloquy was procedurally proper, and the resulting sentence – 30 months below the

statutory minimum – was substantively reasonable.

Notwithstanding the inadequacy of counsel’s Anders brief, we conclude that

Hernandez is unable to raise any nonfrivolous arguments. We will therefore

affirm Hernandez’s conviction and sentence, and we will grant counsel’s motion to

withdraw. 

* * * * * 

We have considered all contentions presented by the parties to all three appeals

and conclude that no further discussion is necessary.

For the foregoing reasons, we will affirm the judgments of the District Court and
19

grant the Anders motions of counsel for Ortiz-Garcia and Hernandez.