2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-27-2010

USA v. Mauricio Betancourt

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1291

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Recommended Citation

"USA v. Mauricio Betancourt" (2010). 2010 Decisions. Paper 384.

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1

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

 

No. 09-1291

______

UNITED STATES OF AMERICA

v.

MAURICIO BETANCOURT

a/k/a

MAURICIO SUAREZ

 Mauricio Betancourt,

 Appellant

 

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-08-cr-00742-001)

District Judge: Honorable Joseph A. Greenaway, Jr.

 

Submitted Under Third Circuit LAR 34.1(a)

October 26, 2010

Before: McKEE, Chief Judge, SLOVITER, and RENDELL, Circuit Judges.

(Filed: October 27, 2010)

______

OPINION

 
SLOVITER, Circuit Judge.

Appellant Mauricio Betancourt appeals his conviction and sentence for one count 

of conspiracy to distribute heroine in violation of 21 U.S.C. § 846. Counsel for 

Betancourt has moved to withdraw and filed an Anders brief, asserting that there are no 

non-frivolous issues for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). As 

authorized in Anders, appellant has filed a pro se brief.1

Betancourt entered into a plea agreement by which he pled guilty to one count of 

conspiracy to distribute 100 grams or more of heroin, which carried a mandatory fiveyear sentence, and stipulated to a two-level sentencing enhancement pursuant to U.S.S.G. 

§ 2D1.1(b)(1) (providing a two-level enhancement for possessing a firearm in connection 

with a drug trafficking offense). In exchange, the Government agreed not to indict 

Betancourt under 18 U.S.C § 924(c) for possessing a firearm in relation to a drug 

 We will affirm and grant 

counsel’s motion to withdraw. 

I.

On June 18, 2008, Betancourt met with and arranged to sell 300 grams of heroin to 

a confidential Government informant. Betancourt was then arrested by law enforcement 

officers who seized the heroin from his truck. Subsequently, other drug paraphernalia 

and a handgun were seized from Betancourt’s residence pursuant to a search warrant. 

 

1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have 
3

trafficking crime, which would have carried a mandatory five-year consecutive sentence. 

Because of the firearm stipulation, the District Court found that Betancourt was ineligible 

for the “safety valve” provided by 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, which 

would have permitted a sentence below the five-year mandatory minimum. Accordingly, 

based on a guideline range of fifty-seven to seventy-one months, the District Court 

sentenced Betancourt to sixty-five months imprisonment. Betancourt timely appealed. 

II.

Under Anders, appellant’s counsel must thoroughly review the record in search of 

appealable issues and explain why the issues are frivolous. United States v. Marvin, 211 

F.3d 778, 780 (3d Cir. 2000). If a reviewing court finds that counsel’s Anders brief is 

deficient, it may still grant the motion to withdraw and affirm if the appeal is “patently 

frivolous.” United States v. Coleman, 575 F.3d 316, 321 (3d Cir. 2009). Here, as the 

Government points out, the record reveals that defense counsel did not order a transcript 

of the plea or sentencing proceeding and therefore he did not adequately review the 

District Court record as required by L.A.R. 109.2(a)(2008). However, because the issues 

raised in defense counsel’s Anders brief and defendant’s pro se brief are all patently 

frivolous, we will nevertheless affirm. 

Betancourt claims that the firearm stipulation and plea agreement were not 

properly entered into because of defense counsel’s failure to advise him of the 

 

jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. 
4

consequences of the stipulation and failure to move to suppress the weapon. We do not 

reach this issue because “[i]t has long been the practice of this court to defer the issue of 

ineffectiveness of trial counsel to a collateral attack.” United States v. Thornton, 327 

F.3d 268, 271 (3d Cir. 2003) (citation omitted). 

Betancourt appears to argue that his plea was not knowing or voluntary because of 

his alleged failure to appreciate the consequences of the firearm stipulation. We review 

that claim for plain error. United States v. Vonn, 535 U.S. 55, 63-64 (2002) (where 

defendant fails to withdraw his plea or raise a Rule 11 objection in the District Court, the 

plea is reviewable only for plain error). The plea colloquy demonstrates that Betancourt 

understood that the plea agreement did not entitle him to relief under § 3553(f) and that 

any such relief would be determined by the District Court at sentencing. Accordingly, 

there was no plain error. 

Notwithstanding the stipulation contained in his plea agreement, Betancourt 

claims that the District Court erred in denying him “safety valve” relief under § 3553(f). 

We review the District Court’s factual determinations as to “safety valve” eligibility for 

clear error, and apply plenary review to its legal determinations. United States v. Wilson, 

106 F.3d 1140, 1142-43 (3d Cir. 1997). Based on Betancourt’s plea stipulation and other 

undisputed facts, the District Court properly concluded that Betancourt had not met his 

burden of demonstrating that the firearm was not possessed in connection with the drug 

offense. Accordingly, there was no error. 
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Finally, Betancourt contends that the sentence was unreasonable in light of his 

cooperation with the Government. The District Court imposed a sentence of sixty-five 

months, within the guideline range of fifty-seven to seventy-one months. Insofar as 

district courts are afforded broad discretion in fashioning sentences, the sentence is 

reasonable and there is no reason to disturb it. 

Accordingly, there is no non-frivolous issue for appeal in this case. 

III.

For the above-stated reasons, we will affirm the judgment of sentence and grant 

counsel’s motion to withdraw.