2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-10-2011

USA v. Jamie Borbon

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1557

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Recommended Citation

"USA v. Jamie Borbon" (2011). 2011 Decisions. Paper 686.

http://digitalcommons.law.villanova.edu/thirdcircuit_2011/686
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________ 

No. 10-1557

_____________

 

UNITED STATES OF AMERICA

v.

JAMIE CARDENAS BORBON,

Appellant 

_____________

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal No. 1-06-cr-00199-001)

District Judge: Honorable Christopher C. Conner

_____________ 

Submitted Under Third Circuit LAR 34.1(a)

July 14, 2011

Before: RENDELL, SMITH and ROTH, Circuit Judges.

(Opinion Filed: August 10, 2011) 

_____________

OPINION OF THE COURT 

_____________

RENDELL, Circuit Judge.

Cardenas Borbon (“Borbon”) appeals from the jury’s verdict of guilty on two 

counts as part of the trial of Borbon and three others for their role in a large scale drug

conspiracy, and the resulting sentence imposed by the District Court.
2

Borbon was implicated in a drug distribution conspiracy in which an individual he 

knew as Juan assisted an informant named Mario Comacho in receiving a large quantity 

of cocaine in Virginia, then re-locating it to Lancaster, Pennsylvania. Agents observed 

the two men meet with Borbon in the parking lot of the Westfield Inn in Lancaster. 

Comacho and Juan rented Room #163, and Borbon and his female companion rented 

Room #147. The agents observed Juan carrying black duffels into his room and all three 

men were observed frequenting Room #163. The agents proceeded to obtain a search 

warrant for Room #163 and recovered 40 kilograms of cocaine from two large black 

duffels, and arrested the three men. Borbon’s female companion then consented to a 

search of Room #147, where agents discovered $182,000.

At trial, a leader in the conspiracy, Amauris Sanchez, testified against 

Borbon, as did Camacho, recounting drug deliveries and money collections in which 

Borbon was involved.

Borbon was convicted and sentenced by the District Court to the minimum 

guidelines sentence of 292 months. Borbon challenges both his conviction and sentence.1

1. The District Court’s adoption of a procedure allowing informants to testify 

directly from English translations of wiretaps and recorded conversations 

Borbon’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 

(1967) identifying five possible issues on appeal, challenging:

 1 The District Court had jurisdiction pursuant to 18 U.S.C. §3231 and our jurisdiction is 

based on 28 U.S.C. §1291 and 18 U.S.C. §3742(a).
3

rather than first establishing that the informant had an independent 

recollection of the events.

2. The District Court’s permitting the introduction of coconspirator statements 

made in furtherance of the conspiracy without establishing by independent 

evidence that Borbon participated in the conspiracy.

3. The sufficiency of the evidence that Borbon was responsible for 

distribution of at least 50 but not less than 150 kilograms of cocaine; and 

that pursuant to U.S.S.G. §3B1.1(a), Borbon should receive a 4-level 

leadership enhancement.

4. The sufficiency of the evidence for Borbon’s convictions for conspiracy to 

distribute and possession with intent to distribute 5 kilograms and more of 

cocaine hydrochloride.

5. The legality of the search of Room #147 and subsequent seizure of 

$182,000 in drug proceeds.

Counsel has also filed a motion to withdraw.
4

Borbon filed a pro se brief raising several additional arguments, all relating to his 

sentence.2

We agree with counsel that it would be frivolous to urge that the District Court 

abused its discretion by admitting the translated transcripts of the recorded conversations 

 

In assessing an Anders brief, we must determine: 1) whether counsel has 

thoroughly examined the record for appealable issues and has explained why any such 

issues are frivolous; and 2) whether an independent review of the record presents any 

non-frivolous issues. United States v. Thomas, 389 F.3d 424, 425 (3d Cir. 2004); United 

States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). If the Anders brief appears adequate, 

we will confine our scrutiny to the portions of the record identified in appellant’s pro se 

brief and counsel’s Anders brief. See Youla, 241 F.3d at 301. Our independent review 

of those portions of the record addressing issues raised by the Anders and pro se brief

reveal no non-frivolous arguments.

 2 Borbon raises the following issues:

 1. Under Booker, certain provisions of §3553(f) should be severed from the statute, 

and therefore the District Court erred in determining that petitioner was not 

eligible for “safety valve” relief.

 2. Whether appellant’s sentence was subject to review under the “reasonableness” 

standard (including “whether the court erred in its upward decisions under 

4A1.3”). 

 3. Summary of the argument (including argument that (1) his sentence, that gives 

exceptional weight to Guidelines calculation violates the Eighth Amendment and 

(2) his sentence is grossly disproportionate and violates Nelson v. U.S.

 4. Whether the District Court lost the power to sustain the subject matter jurisdiction 

of the presentencing investigation report which contains constitutional errors 

based on recent Supreme Court’s line of rulings requiring resentencing.

 5. Whether the District Court erred under the Fifth Amendment pursuant to 21 U.S.C. 

§ 841(b)(1)(A) because the grand jury failed to find a drug quantity that would 

trigger the provision.
5

or the coconspirator statements because the Court correctly applied our decision in U.S. 

v. Starks, 515 F.2d 1, 2 (3d Cir. 1975) as well as Rule 801(d)(2)(E) of the Federal Rules 

of Evidence. The attack on the drug quantity calculation and the sufficiency of the 

evidence would clearly fail in light of the clear testimony of Sanchez and Camacho 

regarding the seizure of the drugs and money. The Fourth Amendment challenge would 

necessarily fail based on the uncontested consent of Borbon’s female companion. 

Borbon’s variety of attacks on his sentence are frivolous as they lack any legal support 

whatsoever.

Thus, issues raised by Borbon and his counsel are patently without merit and, 

through our own independent review, we can identify no other non-frivolous arguments. 

Accordingly, we will affirm the judgment of the District Court and, in a separate order, 

grant counsel’s motion to withdraw.