United States of America v. Mario Borbonio-Ruiz

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-1149
_______________
UNITED STATES OF AMERICA
v.
MARIO BORBONIO-RUIZ, Appellant
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. No. 00-cr-00001)
District Judge: Honorable Franklin S. Van Antwerpen
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
February 4, 2002
Before: BECKER, Chief Judge, McKEE, and BARRY,
Circuit Judges.
(Filed February 28, 2002)
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MEMORANDUM OPINION
_______________________
BECKER, Chief Judge.
This is an appeal by defendant Mario Borbonio-Ruiz from the judgment of the
United States District Court for the Eastern District of Pennsylvania entered pursuant to a
bargained-for guilty plea. Borbonio-Ruiz’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating, inter alia:
Counsel should be granted leave to withdraw his appearance
on behalf of Borbonio-Ruiz because: (1) he has assured the
Court that he has made a sufficiently thorough evaluation of
the record in search of any appealable issues and found that
none exist; and (2) all issues challenging the legality of the
sentence are frivolous inasmuch as this Court lacks
jurisdiction to entertain an appeal because the lower court
considered each of the bases requested for a downward
departure from the Sentencing Guidelines, recognized it had
the authority to depart, but in its exercise of discretion chose
not to do so.
This appeal is from a re-sentencing, and is the second appeal in this case. More
particularly, after Borbonio-Ruiz was sentenced to a term of imprisonment of forty-six
(46) months in prison, he filed an appeal, and this Court granted the consent motion of the
government to remand the case to the District Court for re-sentencing. This was done so
that the Court could explicitly state whether it believed that it had the power to depart
downward pursuant to a motion alleging that the Government should be bound by its false
representation that Borbonio-Ruiz would be subject to a maximum term of imprisonment
of two years if he unlawfully re-entered the United States without permission within the
next five years. Following a hearing, the Court reimposed its original sentence, filing an
opinion and order stating that it had considered each of the grounds for a downward
departure, including the notice issue; that it was aware that it had the authority to depart

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downward; but that in the exercise of its discretion it chose not to do so.
Counsel represents that
any challenge to the sentence reimposed by the lower court on
January 5, 2001, would be frivolous. As noted earlier, the
District Court acknowledged the various grounds through
which Borbonio-Ruiz sought a downward departure,
recognized that it had the authority to depart downward, but
in the exercise of its discretion refused to do so. Decisions of
this Court have made it very specific that if the lower court
recognizes that it could downwardly depart, but if it refuses to
do so based upon its exercise of discretion, this Court lacks
jurisdiction to entertain an appeal. See, United States v. Love,
985 F.2d 732, 734 (3d Cir. 1993); United States v. Dierley,
922 F.2d 1061, 1066 (3d Cir. 1990). If the Appellate Court
has no jurisdiction to entertain an appeal, such an appeal
would be frivolous.
Our jurisprudence requires that counsel in an Anders situation adequately attempt
to uncover the best arguments for his or her client. See United States v. Marvin, 211 F.3d
778 (3d Cir. 1999). However, having read the record, we are satisfied that counsel has
fulfilled his Anders obligations, and agree with his estimate of the appeal. There has
never been an issue concerning the guilt or innocence of Borbonio-Ruiz. He agreed to
proceed by way of information rather than by a grand jury indictment; admitted at the
time of arrest and in open Court to being present unlawfully in the United States after
deportation for a prior drug felony; and also admitted his involvement to the probation
officer for purposes of gaining acceptance of responsibility.
We have addressed the downward departure issue, supra. The other putative
sentencing issues are patently lacking in merit.
We will therefore grant counsel’s request to withdraw, and will affirm the
judgment on the merits. _______________________
TO THE CLERK:
Please file the foregoing Opinion.
BY THE COURT:
/s/ Edward R. Becker
Chief Judge

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