United States of America v. Eliezer Rangel Ortiz, also known as ELIEZER RANGEL Eliezer Rangel Ortiz

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3325
UNITED STATES OF AMERICA;
v.
ELIEZER RANGEL ORTIZ,
also known as ELIEZER RANGEL
Eliezer Rangel Ortiz,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action No. 05-cr-00361-1)
District Judge: Honorable Faith S. Hochberg
Submitted Under Third Circuit LAR 34.1(a)
September 28, 2007
Before: AMBRO, JORDAN and ROTH, Circuit Judges
(Opinion filed: October 29, 2007)
OPINION
AMBRO, Circuit Judge
In February 2004, police, acting on a tip from a confidential informant, stopped a

-- 1 of 4 --

2
vehicle believed to be transporting cocaine. They found three men in the car, including
Eliezer Rangel Ortiz, along with a package of cocaine. Oritz was carrying an unloaded
Glock 9 firearm in his front waistband and the car’s driver was carrying a loaded
revolver.
Oritz was subsequently charged with one count of conspiracy to distribute and
possess with intent to distribute more than 500 grams of cocaine, contrary to 21 U.S.C.
§§ 841(a)(1), (b)(1)(B), and 846. He entered a guilty plea in May 2005 and was
sentenced to a 70-month term of imprisonment. Ortiz appeals the judgment of conviction
and sentence. His counsel, Angelo Servidio, Esq., has filed a motion to withdraw as
counsel pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that all potential
grounds for appeal are frivolous. For the reasons below, we grant that motion and affirm
the judgment of the District Court.
Under Anders, if counsel “finds [a] case to be wholly frivolous, after a
conscientious examination” of the potential grounds for appeal, he should “advise the
court and request permission to withdraw.” 386 U.S. at 744. This request must be
accompanied by “a brief referring to anything in the record that might arguably support
the appeal,” id., “explain[ing] to the court why the issues are frivolous,” United States v.
Marvin, 211 F.3d 778, 781 (3d Cir. 2000), and demonstrating that he has “thoroughly
scoured the record in search of appealable issues,” id. at 780. A copy of counsel’s brief
must be furnished to the appellant, who must be given time to raise nonfrivolous

-- 2 of 4 --

1 Ortiz filed an informal pro se brief in accordance with the local rules.
3
arguments in a pro se brief. Anders, 386 U.S. at 744; Third Circuit LAR 109.2(a). 1
We “confine our scrutiny to those portions of the record identified by an adequate
Anders brief . . . [and] those issues raised in Appellant’s pro se brief.” United States v.
Youla, 241 F.3d 296, 301 (3d Cir. 2001) (citing United States v. Wagner, 103 F.3d 551,
553 (7th Cir. 1996)). We do not “comb the record . . . for possible nonfrivolous issues
that both the lawyer and his client may have overlooked,” as “[our] duty is merely to
determine whether counsel is correct in believing those grounds [raised are] frivolous.”
Wagner, 103 F.3d at 552–53. We grant counsel’s Anders motion to withdraw if we
believe “that the attorney has provided the client with a diligent and thorough search of
the record for any arguable claim,” McCoy v. Court of Appeals of Wisconsin, 486 U.S.
429, 442 (1988), and if we conclude “that the appeal lacks any basis in law or fact,” id. at
438 n.10.
After our independent examination of the record, it is clear that counsel has
satisfied his Anders burden and that no nonfrivolous issues from which to appeal exist. In
his pro se brief, Ortiz contends that his counsel was ineffective (1) at all stages of the
proceedings, (2) at sentencing by failing to enumerate the sentencing factors in 18
U.S.C. § 3553(a), and (3) at sentencing by failing to argue for a downward departure
because of Ortiz’s status as a deportable alien. At the outset, we note that ineffective
assistance claims are usually pursued in a collateral proceeding, rather than on direct

-- 3 of 4 --

2 We do note, however, that, contrary to Mr. Servidio’s assertions at pages 15–16 of
his brief, we have jurisdiction to review a within-Guidelines sentence for reasonableness.
United States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006).
4
appeal. See United States v. Theodoropoulos, 866 F.2d 587, 598 (3d Cir. 1989),
overruled on other grounds by United States v. Price, 76 F.3d 526, 528 (3d Cir. 1996).
“There is, however, a narrow exception to the rule that defendants cannot attack the
efficacy of their counsel on direct appeal. Where the record is sufficient to allow
determination of ineffective assistance of counsel, an evidentiary hearing to develop the
facts is not needed.” United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991). The
record here does not provide a sufficient basis from which we can evaluate the adequacy
of the representation that Ortiz received. Moreover, the record does show that the District
Court considered the § 3553(a) factors 2 as well as Ortiz’s immigration status in fashioning
its sentence.
Because there are no nonfrivolous issues for appeal, Ortiz’s judgment of
conviction and sentence is hereby affirmed, and counsel for Ortiz is granted leave to
withdraw.

-- 4 of 4 --