2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-8-2002

USA v. Retemar

Precedential or Non-Precedential:

Docket No. 00-1978

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Recommended Citation

"USA v. Retemar" (2002). 2002 Decisions. Paper 258.

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 NOT PRECEDENTI

 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

 No. 00-1978 

 

 UNITED STATES OF AMERICA 

 v. 

 JORGE RETAMAR, aka "DARKMAN" 

 Jorge Retamar, 

 Appellant 

 

 On Appeal from the United States District Court 

 for the District of New Jersey 

 (D.C. Crim. No. 99-cr-00753-5) 

 District Judge: Hon. Alfred J. Lechner, Jr. 

 

 Submitted Under Third Circuit LAR 34.1(a) 

 April 1, 2002 

 Before: SLOVITER, FUENTES, and MICHEL,* Circuit Judges 

 

 (Filed: April 8, 2002) 

 

 OPINION OF THE COURT 

__________________ 

 * Hon. Paul R. Michel, United States Court of Appeals for the Federal Circuit, 

 sitting by designation. SLOVITER, Circuit Judge. 

 Jorge Retamar appeals from the judgment of conviction and sentence entered by 

the United States District Court for the District of New Jersey following Retamar’s guilty 

plea. Retamar, who was indicted on two counts alleging that between May 11, 1998 and 

December 16, 1999 he conspired with the co-defendants to distribute and possess with 

intent to distribute more than one hundred grams of heroin in Newark, New Jersey, in 

violation of 21 U.S.C. 841(a)(1), 21 U.S.C. 846 and 18 U.S.C. 2, pled guilty to one 

count pursuant to a cooperating plea agreement. 

 Retamar and the government agreed to various stipulations. Among them is a 

stipulation that the applicable guideline provision for the offense is set forth in United 

States Sentencing Guideline Manual, 2D1.1(a)(3), and that the amount of heroin 

reasonably foreseeable based on Retamar’s participation in the conspiracy and his role in 

the offense, and thus attributable to him, is at least three kilograms but not more than ten 

kilograms. Retamar waived his right to file any appeal, any collateral attack, or any other 

writ or motion after sentencing that challenges the sentencing court’s determination or 

imposition of the offense level if the total offense level determined by the court is equal to 

or less than the stipulated offense level set forth in the stipulation. 

 The Presentencing Investigation Report determined Retamar’s guideline level to 

be a base offense level of thirty-four, reduced by a total of three points for acceptance of 

responsibility, leaving his total offense level at thirty-one with a guideline range between 

121 and 151 months. Although the District Court granted the government’s request for a 
downward departure only reluctantly, it departed below the applicable guideline range 

and sentenced Retamar to a term of imprisonment of 110 months. 

 Retamar appealed. Counsel for Retamar filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967). Under Anders, if counsel is convinced after 

conscientious investigation that the appeal is frivolous, counsel may properly ask to 

withdraw. Id. at 741. Anders also requires that counsel’s brief cite any matters that may 

be arguably appealable. Id. at 744; United States v. Tannis, 942 F.2d 196, 197 (3d Cir. 

1991). In this case, counsel stated no matter that was arguably appealable. 

 Retamar was given the opportunity to file a pro se brief, which he did. In that 

brief, Retamar argues that the indictment and information must be dismissed as 

jurisdictionally defective, that he is not a 21 U.S.C. 841(a)(1) defendant, that 21 U.S.C. 

 846 is constitutionally void for vagueness, that the government was without jurisdiction 

to charge him with 846 and the court was without jurisdiction to adopt the charge of 

 846, that he unknowingly and unintelligently entered a plea of guilty, and that an 

attorney who does not communicate or advise is ineffective counsel, setting forth a claim 

under the Sixth Amendment of the Constitution. 

 We have reviewed all of Retamar’s contentions going to the merits on this direct 

appeal and find them without merit. In particular, we note that Retamar was thoroughly 

examined by the District Court with respect to the rights that he waived upon entering the 

guilty plea and his understanding of the terms of the plea agreement. We do not reach 

Retamar’s ineffective assistance of counsel claim, as this court holds that in general such 

a claim must be raised in a collateral attack pursuant to 28 U.S.C. 2255. See United 

States v. DeRewal, 10 F.3d 100, 103 (3d Cir. 1993); United States v. Rieger, 942 F.2d 

230, 235 (3d Cir. 1991). We therefore agree with counsel that Retamar raises no 

nonfrivolous issue for appeal. 

 For the reasons set forth above, we will affirm the conviction and sentence of the 

District Court and will grant counsel’s motion to withdraw. 

_____________________ 

TO THE CLERK: 

 Please file the foregoing opinion. 

 /s/Dolores K. Sloviter 

 Circuit Judge